National Court of Papua New Guinea

Acting Public Proc Prosecutsecutor v or v UnamaUnama Auma Aumare &are & 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, e Western Highlands Provincovince.

1. LOCUS STANDI OF ICRAF

ICRAF is a community interest group which is incorporated under the Associations Incorporation Act. (Ch No 14260; According tong 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 Newea as enschired in the inte 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 Enfont ofanteednteed rightrights and freedoms

(1) ټ Atrighfror freedom edom referred to in this Don she prod by, and is enforceable in the Supremepreme Court or the National Court or any oany other ther court prescribed for the purpose by a of trliameither ther on iton it̵’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 oection:

(a) ;&#16e Law OfficOfficers ofrs of Papua New Guinea; and

(b) ;ټ opersoscribed for for the purpose by an Act of the Parliamentament; and; and

(c

(c)&#16) &#160 othyr persons with anth anrest (whether personal or not) in the maintenance of the prhe principles commonly known as the Rule of Law such that, in the opinion e councernhey oto be allowed to appear and band be heae heard onrd on the 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).

et 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. HISTORPROCEEDINGS

ICRA>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 these proceediceedings, the court proceeded to conduct a preliminary inquiry into the matter. ourt directed the attendanendance of Miriam Willingal and ovillage clansmen from both sides of the alleged compensatiosation arrangement. They promptly attendeCourtCourt. The courtrtained diy from from MiriaMiriam that she was in fact subjected to some kind of threats to her life and personal safety and that sheed sootective orders.

Miriam however did not diot disclose the details of the threat and and names of any particular person issuing the threats. That inform was sufficientcient to justify an interim protective order. Toement the order, Father ther Robert Lak of the nearby Rabiamul Catholic Church was present in court to take her into the Church premises where she could stay pe the conclusion of these proceedings. It appeared thad that thi had been pre-arranged. On 21se 1996, with the cone consent of Miriam, the court ordered, inter alia:

(1) &&#160t unail fuil further ther order, Miriam Willingalccommd in protective cive custody by Father Robert Lak and the Sthe Sisters at the Rabiamul Catholic Church; and

(2) ҈& ThatTangilkaginda anda and Konu Konumbuka tribesmen be restrained from assaulting or threatening Miriam in any way.

On 21st June 1the Calso issued the following directions as to the future conduct of the proceedings:ings:

(1) unat fuilher trder, ICRAFICRAF interview all parties involved and file affidavits from interested persons;

(2) ټ&##160; Miri inteed separately and her story be reduced to affidavitdavit and and filedfiled in c in court.ourt.

Consequently, ICRAF filed theowing affidavits:

1. ټ A60; Affidavit of Miriam nillingllingal sworn 28th May, 1996.

2. ـ Avfidaf t of Sam Imene swoe sworn 28th May, 1996.

3. ټ&##160; A60; AffidavfidaviToni sworn June, 1996.

60; ;ټ Affidavfidavit of t of Dr John Muke suke sworn worn 06th 06th June,June, 1996.

5. ҈҈& Affi of Susf Susan Baan Balen sworn 10th May, 1996.

6. t Th0; The Relief sought by t by ICRAF on behalf ofam Willingal.

The orders the applicant (ICRAF) seeksseeks and the alleged facts and grounds upon which the applicant seeks thoders ully ut in the Applicaplication.tion.&#160 I sem out in full hereundeeunder.

3. THIS APPLICATION ARISES AS A RESULT OF THE FOLLOWING

(a) ټ O theofrd of May 1May 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 9th Ma6 1996 the Pthe Post Courier Newspaper reported that the said Miriam Willingal was not willing to marry at this time into the Konumbuka tribe, be she d to nue hucation and to find a job.&#1b. T60; The sahe said neid 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 anedoms of a person in the fohe following respects:

(i) ҈ a60; a woman is notgoblio d to do anything that is not required by law, under Section 32 (2) (c) of the Constitution, and may not be forced into a customary marriage agaher w/p> <) ҈ a womanwoman who who is exis exchangchanged with another customary group as part of a compensation payment, anis forced into a customary marriage against her will is subjected to treatment that is inhu inhuman, or is inconsistent with respect for the inherent dignity of the human person contrary to section 36(I) of the Constitution;

(iii) a woman who is forc d to itay in a particular location, village or place, against her will, as part of a customary compensation arrangemencludepriv of hportunity to educate herself or to seek employment has been deen depriveprived ofed of her her right to Liberty of the person, contrary to Section 42 (I) of the Constitution;

(iv) ټ a woman who iwho is deprived totally or in part of her ability to make a free choice in respect of the person she is to marry, isdeprived of her right to reasonable privacy contrary ctionf the Constitutiotution;

(v) #160; a woman sho iceforo stay itay in a particular location, village or place, against her will, as part of a customary compensation arrangement, is deprived of her right to freedom of movement, ary ttion ) of the Constitustitution;tion;

(vi) a womo iwhexch nged with aith another customary group as part of a compensation payment, and or is forced into a customary marriage against her will, is deprived of her right to the Equality of Cit contto se 55 of the Cthe Constionstitutiotution.

4. & The Constitut onal Law prow provisions, relevant are:

· ҈& < < Constitution oncti the Rige Right to Freedom

· ـ҈& &#Sect on 36 Fre6 Freedom fdom from Inhuman Treatment

· ҈  ـ Section 42 (I) Libe Liberty of the Person

&##160; &##160;;ɘ S60; S60; Se0; Sectioection 49 Right to Privacy

· ҈ on 52t to Freedom vf Movement

· ;ټ < < #160; Sect on 5ion 55 EqualEquality of Citizens

5.ـ҈&&#160ordinthe Aant seeks Orders:

(a)&>(a) #160; &##160;; th0; that the Shee Shee Sheriff riff of this Honourable Court cause the tribal leaders of the Tangilka and Konumbuka tribes and Miriam Willingal to appear before the National Court in Mount Hagen at a date to be fixed;

(b) thatNati nal Court in Moun Mount Hagen cause a hearing to be made into the allegations raised in this matter to determine whether or not any of the rights specified have been infringed, and to make any orders or declarations as it may see fit under section 57 (3) of the Constitution, and such other Orders as the Courts deems necessary.

4. HEARING - EVIDENCE ON CUSTOM AND CUSTOMARY PRACTICE OF “HEAD PAY”

At the hearing, the relevant leaders of the Tangilka and Konumbuka tribes and Miriam Willingal appeared voluntarily at the request of the court and it was not necessary to involve the summoning powers of the court or the Sheriff’s powers, if any. ICRAF was then asked by the court to interview all interested leaders and any person who might have an interest in the outcome of the application, both for and against, and file affidavits.

The affidavits filed by ICRAF mentioned already were dere derived as a result of this exercise. On this basis I saw no reason for the court to call any other witnesses on the Court’s own initiative. I am satisfied all personsrsons who have terest in the proceedings have had the opportunity to register their interest through this this process and I will deliberate only onevidence before me.

There are four (4) key witnessesesses in these proceedings. Miriam ioung woman aged 18ed 18 years. s a Grade Ten (10) studentudent at the College of Distant Education at Mt. Hagen. She is from Kanem clan of n of the lka tof Tumba village, Minj. She is the e dest daughterghter of the late Willingal Koidam idam Kupil. Heher’s mothees from from the Konumbuka tribe. When Miriam mall, tll, the, there was a tribal fight between the Tangilka tribe and the neighbouring Koambilka tribe. As a result of the trfightfight, her fher father left Miriam and her mother and other children to live with Toni Boma of the Konumbuka tribe at Rot Bung village. Toni Boma is Miria17;s mats maternal uncle.

Sam Imene is married to Miriam’s father’s sister. so looked after Miriam.&#1m. Saes from the neigbouring ring Neneka tribe.

Her r continued to live with hith his tribesmen of the Tangilka tribe. The tribal fight lasted for some fifteen (15) years.

On 26th Apr996 police shot dead Miriamiriam’s father at Wei village in the process of looking for another Tangilka tribesman, one Robert Mond Awa. As a result, the buka trib tribesmen blamed the Tangilka tribesmen for indirectly causing his death in that their wrongdoing, through Robert Mond Awa, caused the Police to come to Tangilka territory and shot the deceased. The Konumbuka felt had losd lost someone dear to them - a son of one of their daughters. For this reason, the Kona buka demanded from the Taa tribe compensation for his death. type of compensation is reis referred to as ̶“head pay”.

The “pay” is a custom of the people in the Minj area.&#160 It is clrom the evidence tnce that the payment of compensation by the deceased’s tribe to the deceased’s mother’s tribe for the death caused by unnatural causes is widely practised i Minj area. It is alss also cleom the the evidence that “head pay” compensation takes the form of payments in money, pigs and other valuable personal items. What is not clear, aat is t is something I have to decide, is whether “head pay” includes payment in the form of young single women.

The best evidence on “head pay” could have come local independent experts srts such as village elders, village councillors and village magistrates but no such evidence is before me. Neither Miriam nor Sam Imnne and Toni Boma are such experts. Sam Imene is a lecture at Highlands Agriculture College in Mount Hagen and Toni Boma is a retired CIS Warder living in the village. Dr John Muke holds a date rate degree in Enthroarogy and a lecture at the University of Papua New Guinea.&#1a. He is ber of the same sub- sub-clan as Miriam’s father (Kumm) of the Tangilka tribe and a close associate of Miriam.&#am. All twitnesses are educateucated and have been exposed to modern of living and have spent ment much of their time away from their village.

Nevertheless, I must make do with what evidence I h#160; Out of them, I am impm impressed by the evidence of Dr Muke. Although he is not a village expert in local custom, his exposition of the custom and the underlying complex social network and values impressed me.

I will re-produce the pertinent of his affidavit regarding custom and it’s applicatiication to the present facts. Dr Muks in his affidavit avit as follows:

“1. ـ&#1y virt virtue of e of birth, I am a member of the Kumu Kanem subclan of the Tangilka t The late Willingal is a clan father and also a path personerson to my children. He was the linking persomyto my wife and therefore act as an immediatekin within my own clan. As a result of this closetkin ties I supported Miriam Willingal both financially andlly.Miriam confided to me and shared with me her problems aems and prospects.

2. &ـ I6was owas on leav leave and living with my afmy affines (brother-in-laws) the Tau Kanem at Rot Bung village, Minj, Western Highlands Province when Koidllings negtly shot dead by the Police.

3.&p>3. #160;&#160 ټ & Koidam&idam’s matermaternal uncles are the Tau Kanem of Konumbuka tribe and the bulk of the population resides around the Rot Bung area. Koidam’s and childrhildre well majoof the the Kumu Kumu KanemKanem clansmen live as war refugees within the Tau Kanem territory. The fl ceremony for both Roth RoMond and Koidam was conducted at Rot Bung.

4. &160; ـn The fire first demands from the late Koidam&;s uncles was to establish those wronged and seek payments.ents. The nature ofam’s de;s death was as follows. The ffive year as illi ilaiteratterate and did not have any training for tfor the use and discharge of firearm. Furthermat the time of thif thice rKoidam and Robertobert were sleeping in separate houses. The distancween the houe houe houses were separated by the Numants Rivp>

5. It woule have haven akre tore than 15 minutes for Koidam to provide any real protection obert. Up to the time time ofdeat death, Koidam had never appeared in any court of law. He irominent leader of thef the Kumu Kanem Clan and to his mateuncles he has never committed any crimes to warrant his death.

6. &160; Th Taum estabd that, they they had always exes exercised their divine curative powers and ensured that Koidam rose to prominence and live a long life.& Theyed they di infl any over Koir Koidam rdam resultesulting iing in hisn his deat death in such a manner as he did. Tu Kanem’s own transtransplant was terminated and as root people, they felt that Kumu Kanem had violated their divine relationship. Their daughter, K&#821othemother, who put so much effort to raise Koidam, wam, was destroyed by the Kumu Kanem.

7. ـ Therefore, tue TaemKanem demanded that Koidam’s bones or head must be returned to d to his mother’s brothers subclan.& The ory oment under the wider nexus of life-cycle payments. It is nois not a directirectirect comp compensation payment as that is usually required in homicide compensation. This payment is referred to as in Wahgi ‘yi peng kon to ng ondi’ man skull.& I return it in a net bag obag or bilum. This is simply phrased as ‘head payments’.

8. ټ ehe hayd ptsments are made made usually in the form of material items either when the male is alive (by himself) or after hd (byclans Whe occaarises the mother&ther’s brothers request that a gt a grand-rand-daughdaughter oter of their sister be returned to them.&#That request is described as ‘a skull is returned in a netbag’. Since nete net bag es woma woman, this practice falls within the wider category of marriage system.

9. ـ S60; Such marriage practice is called riptive cross-cousin marriage and this enables marriage pare partner clans to be alternate wife givers at three (3) generational leve60; Piptivss-cousin marriage does not involve the sell selling oing or forr forcing of women to marry into a clan that she does not want. It hways been a customary mary practice among the Wahgi for girls to choose their own partners, even if social constraint were imposp>

10. Whedam was murdered by they the police his uncles demandemanded that the Kumu Kanem return this ‘skull in the net bag’. The Kumu Kaneghed this reqs request against the existing more credits and debts relations between the two (2)groups. The Kumu Kanem acknowlethad that they were indebted to Tau Kanem on several grounds.

11. In trst ilace, as refugeesugees they were living amongst the Konumbuka tribe. The roups have been war paar partners for the lao hunyears0; Thre more than five (5) generations at marriage, Koidam’s217;s imme immediatediate fami family were looked after by his maternal s since 1979. They diey did notany rent rent to the Tau Kanem for use of land or other services.

12. dly, through Koidam as a ms a middle person, the first Tau Kanem blood after contact, provided the road as a path for a pool of womenarry the Kanem. These group of Tau Kanem omen have produced 10 m 10 males ales and tand therefherefore increasing the political status and size of the KumuKanem.

13. Thirdly, the Kumu hnem give given women in return but they have to produce enough offsprings to offset the imbalance.

14. Onabove grounds Kumu KanemKanem agreed to resthe imce incredit - deb- debt relt relationations and create new ones, as well as resolve any potential disputes. Accordingly, the Kanem m cm m contion opigs, offereffered to d to give give one girl as part of the prescriptive cross-cousin marriage. At the tf the exchanging iing it way agreed in principle that one of the Kumu Kanem daughters ters would marry into Tau Kanem. It was uthe girl to decideecide.&#1n these kind of exchange, girls are not forced to marry anyy any particular person.

15. ;&#16en the pigs pigs exchaexchanged in respect of the head pay, the Kumu Kanem indicandicated that a ‘net bag’ will be returned in future. Kunem dt mak particular arar arrangement with Tau Kanem anem when when the girl concerned will be given. Threed that Miriam was aals aal choice because Miriam’s family settled in well in the Tau Kanem territory and to r to refuse Tau Kanem’s request impliat the Tau Kanem would request proper compensation of use ouse of their land and resources for the period Miriam’s mother and other siblings were in Tau Kanem territory.

16. ـ It would also also destroy the continued reciprocal relations that the two groups enjoyed in other contexts. Furthermore, tath of KoidaKoidam meant that the welfare of Miriam an famiuld not be maintaaintained by next kin as they were scatterattered as refugees. It was therefore, soy bene beneficial for Miriashe was looked after by hery her uncles and theywould ensure that her marriage and future prospects were not hampered by the death offather.

17. & Koidns lwrg larg large blge blocks of coffee in his uncle’s land and these had to be maintained. Af Koidam’s wealth wlth was with his maternal uncles and it seemed reasonable to relinquish Miriam’s birth right to ae and tribe so that all the welfare, prospects of marriage and future credit-debts relationations that she created are the responsibility of maternal uncles.

18. Thuswas greed that Miriamiriam remarried where she was (in the Tau Kanem territory) and that she marry a Tau Kanem. If she decided to marry someone of her own choice, she will have to consult wit fath217;srnal uncles cles ratherather thar than her own clan (ie the Kumu Kanem).

19. &#160 to the qunstion of thof the right to choose one’s own partner, Miriam’s rights were not violated because she still has the same freedom as all the Wahgls.&#They are allowed to entertain and courtcourt any any malesmales of their own choice. If Miriamlies with the twoe two clans general wish, the respective clans will agree that a head payment in the context of returning a skull in the netbag has been comple#160; Otherwise, the Kumu Kanem’s debt to Tau Kanem rnem remains an open issue until at such time that the Kumu Kanem girl marries a Tau Kanem man.

20. If Miriam dectdes rr ma Ta a Tau Kanem, Bride Price Payments will still be exchanged between the parties concerned. At point in time, Miriam iiam is still a free woman and the Tau Kanem have noted heo mar. They Thll will have have tave to get her permission to do so. They have not sold her as part of compensation but an agreement to returnas part of life-cycle payments. They have not done anything to take her out of her eder education, dreams or aspirations as she has been looked after throughout her education by Koidam’s brother-inlaw Sam Imene and the Kumu Kanem’s respect therts of Sam Imene.”

I should also re-produce the pertinent parts of the affidavits of the other witnesses.

Toni Boma says as follows:

“1. ـ As statod above my e my father’s sister (of the whole blood) by the name of Tune married Kupil of the Kumu Kanem clan of Tangilka tribe as a result of which Miriam’s father Koidllings bor60; Wil; Willingalingal becl became a tribal leader and was married with two wives and several children at the time of his demise on the 12th of April 1996 at the hands of the Police at his own village.

2. ـ҈ O60; On or a or about 1979 tribal warfare erupted between theTangilka and the Komun Kambilka tribe and as a result of which Miriam’s father leftwiveschildren including Miriam with me. Thereaftreafter, wer, with the exception of the deceased and other men of the tribe fighting at that time, the family including other members of the tribe fleeing the fightresided on our land and are still there now.&#16e fight has lasted for 15 l 15 long years with the introduction of home made guns in 1990.

3. I haveefher rareed Msriam riam up as my own child since shewas about the age of eight (8) years old. Sam Imene has a ising m.&# m.&#1herefaccorto our custom if Willingal had not died, ied, I, SaI, Sam Imem Imene anne and Wild Willingalingal would have distributed Miriam&#8217ideprice on her wedding. Becausis dead, Sam and and and I will distribute the brideprice.

4. & M60;am&ri217;8 father wasr was shot dead by the police at Wei village near the mountains on the 12th of April, 1996. We tnumbuibe fhat tngilkbe was responsible for the early death of the deceadeceased used under nder such such circucircumstances wherein he would not have beot at all. The circumstances behe dise distance between the shooting of Mond and Will Willingal’s house and the location of his residence being in the mountains, we felt that the Tangilka tribe members had brought the police onto their land in search of Mond as a result of which Willingal had been executed by the police. We strongly felt thatpolicpolice on their own would not have ventured far inland.

5. & A60; re alt ou the above bove circumstances, we believe the Tangilka had caused Willingal’s death hence in acco accordance with prevailing custom practised within Western Highlands Provmy tremand8216;head payRy’ f17; from trom the Tangilka tribe. This is a pa normally requ requested by the deceased mother’s tribe for the unnatural death usually at the hands of another person. Ith arises out of natural ural causes the maternal tribe or cannot demand the head pay. pay. Theest is made only when ahen a person is directly or indirectly responsible for the death.&#1he payment is made with pigh pigs,money and in women.

6. ـ C60; Consequently, as a result of this custom my tribe requested head pay from the Tangilka tribe the sum of Twenty Thousand Kina (K20,000.00), twenty five (25) pigs and t) wom Koid217;s head pay. It is only a request only only anly and thnd the actual payment will be determined by the Tangilka tribe. I will oncept what is give given to me. also say that we do not spot specifically identify any women in our request.

7.ـ &##160; Had another ther tribe catsed the death of Willingal I would have aske asked that tribe to pay me head pay. Aner compens would have beve been received by the Tangilka tribe. The head s payabpayable onle only to the maternal uncles as the keep the deceased’s good health and life. We believe that the matereal relatives ofes of a person are responsible for the lenf time a man lives on this this earth. If the person is not on good terms with his maternal relatives he does not live longer.& Further, where there is hiis high regard for the person it is our customary belief that the person will live to his old age unless hs early.

8. &##160;; It is o is our belief the the goodwill and high regard we the Konumbuka’s have always had for the deceased has protected him all through the period of tribal warfare and no harm had ever befallen him. Nollings died at the hane hane hands of another person and as such his death is not natural. Therefore one causing his his death pay us Willingal Koidam’s head pay. In this case because the eolicemen were rere responsible we are unable to ask them.& However, because the Tangilka tribe were also responsible ible they have been asked to pay us head pay.

9. &ـ As for Miriam,riam,riam, she need not to come if she does not want to. If she does decide to come as Koidam’s hea, shemarrynumbuka man or man of her own choice. I will always receive the hthe head pead pay.&#ay. The paymend not necessarilsarilyade now. wait so many years and rend receive my head head pay when another Tangilka women marries into a Konumbuka man. if M deciot to marry now now I can always wait for severaeveral years before collecting the paymentyment.”

Sam Imene says as fol

“1. &##160; thamguar guardian oian of Miriam Willingal.&#160 I am from the Neneibe of K of Kamang village, Minj, Western Highlands Province and I am married to a Tangilka woman, the sister of Miriam’s father.

2. ҈&&#160n Mhen Miriam riam was about the age of 12 my wify wife and I took her under our care while she was attending Tambul High S.&#16nce then we have maintained and educated her. When she dropped f schooschooschool in l in 1993, we arranged for her to attend Mt. Hagen Commercial Training Centre in 1995. This year she is eed at that the College of Distant Education (CODE) here in Hagen doing her Grade 10.& 10. We hlways desired that shet she be educated and trained for formal employment so that she wouldinancially independent in f in future.

3. &##160; Koidam Willingal waal was an elder and clan leader of the Kumu Kanem clan of Tanglika tribe. He was a suence farmer andr and married with two wives. He was shot dead b p on tton tth ofl, 1996 duri during a ng a PolicPolice raid at the Wara Numants area.

4. The Tangilka tribe had enran tribal warfare with Komun Kambilka, another tribe. 160; As ult of this most oost of the members of the Tangilka clan disperseotherhbourribes a miy remg on Tang Tangilka ilka land.land.&#160 The; The dece deceased Koidam Willingal was one of those who chose to remain on his land.

5. ; A60the ime of the raid taid the deceased was residing in a home several kilometres away Robert Mond in the Wara Numa Numants area along the ridge of Kubor Range. I would often with the dece deceased to discuss family as well as other matters of interest.

6. &ـ W60; When then the deceased (Miriam’s father) was shot dead in his homer Robert Mond was shot seve several kilometre away, the Konumbuka tribe who is the deceased’s mother’s tribe blamed the Tangilka tror his death. They saey said the deceaseceased who lives inland and further into the mountains would not have died, had it not been for the Tangilka tribesmen whom the Konumbuka’s believe brought the Police to their land.

7. ـ H nce,Kohe Konumbuka tribetribe according to custom demanded excessive compensation in pigs and thousands of kina calle216;hay&#8&#160y also demanded for two girls from the Tangilka tribe as part part of t of the hehe head paad pay.

8. & This particulsr custom of m of demanding head pay is commonly practised by the Minj people even today. The c oandin womepart 8216 8216;pay’ is still practised, the last being in 19in 1989 be89 betweentween the the TangiTangilka and Konumbuka tribes. Howevhere ayment in pigs aigs and money are sufficient to satisfatisfy their demand, there is no need for a woman to be given. Other the is given to theo the tribe demanding ‘head pay’. Tman does nots not have thve the choice once the tribe has mhe decision to send her across to the other tribe.

9. &##160;;&160; So0; So far twenty (24) pi4) pigs haen paid by the Tangilka tria tribe to Konumbuka tribe. This payment has been cbutributed to by both the Tangilka and other peopo wou futuquire rire repaymepayment with interest and all these have have to be repaid by the Miriam’s immediate family. In which cMiriald always pays play a ay a major role in the repayment whether arries into the Kohe Konumbuka tribe or not.

10.ټ & However, if Miriam does moes marry into Konumbuka tribe the compensation paymentyment to the Konumbuka tribe would be decr subsally and she woul would not be obliged to carry the additional burden in future. At t At this pin time no c no cash payment has been made yet, both tribes are concerned about bringing those responsible for Koidam’s death to justice. It is alsod thae the CourtCourt established the manner in which the dthe deceased died, the compensation may be distributed by those responsibl>

11. Furtthe eceased’s i7;s immediate family have decideecided to ask Miriam to marry into Konumbuka tribe to prevent the Konumbuka tribe from chasing Tangilka tribe members currently settling on their land. m’s two mothers and and their children currently residing on Konumbuka land are in danger of being harmed and evicted should the Tangilka tribe refuse to the compensation demand.

12. &#160 At the m mentamiri living ving with me. However, e does not have aave any choice she will currently have to go to Toni Boma who will decide who she is to marry.”

Miriam Willingys asows:

“1. #160;&#160 the person oson on whose bose behalf this proceeding has been commenced. I am ntly enrolled in Grad Grade Ten (10) at the College of Distant Education (CODE) here in Mount Hagen. The matters deposed to in the succeeding paragraphs aom my own observation and knowledge and are therefore true true to the best of my knowledge and memory.

2. &##160;; I am the eldest dast daughter of Willingal Koidam Kuam Kupil of the Tangilka tribe within the Minj area. My father marrio (2)s of my mother is the first. I have fivesisters (includncluding half half sistesisters) ars) and two half brothers. All are ctly livingot Bung Bung village on Konumbuka land.

3. &##160; ; Wh0; When I wn I was very small tribal fight st between the Tangilka and the Komun Kambilka clan of Sikmil village, Minj, Western Highlandhlands Province as a result of which my faleft th hiherRr’s 17;s relatrelative Toni Boma at his village at Rot Bung.

4. ;ټ I grew grew up in p in both Toni Boma and Sam Imene’s house. Sam Imene is married to my father’s sister.

5. & &ـ Thbal fightfight mentioned in paragraph 3 abov above hase has last lasted for almost 15 years. All these times my fatas bhas been livi his at Tuith theh the other men during the tribal fight.

6. ;&#1660 On0; On the 12th of Ap1996 1996 thice shot my father at Wei village killing him. I was at Rot Bung village lage when the news reached us. I was a meofparty brouack uack his body body from Wei village to Rot Bung villagellage wher where his mother’s relatives viewed the body before returning him to theincial morgue in Mount Hagen.

7. < & ; Th0 day after his dhis death, (on Saturday) I was there at the funeral (‘haus krai’) when I heard several member of the Konumbuka tribe say that during the 15 years of the t fighidam ngal had nevd never beer been inen injured but now because the Tangilka clan had brought the Police onto their land to look for Robert Mond Awa, Willingal had been shot by the police. They said thcause the Tang Tangilka themselves had brought the police onto their land, the Konumbuka tribe demanded ‘head pay’ from the Tangilka tribe for the loss of Willingal’s life atr hands.

8. &##160;; The Kone Konumbuka tribe taid that this payment would not have been sought from the Tangilka tribe if Willingal had died of natural causes. Hence, theynded from the Tthe Tangilka tribe two women, twenty five pid Twenty Thousand Kina (K20 (K20,000.00) as ‘head pay’.

9. ـ D6ring the whole ofle ofife time I have seen other ther tribes in similar position as the Konumbuka tribe demand ‘head pay’ from other tribes fordeathan.&#Howev have not seen nor heard any any demandemand ford for wome women as head pay although I am aware that this custom was practised prior to the arrival of the Missionaries. The demand for the wdid noid not identify any particular person but was made strongly and continuously during the funeral.

10. &#When ema d wasd was made made the male members of my &#8216 lain’ were afraid asid as they were residing on Konumbuka land and as such they came and asked me to go to Konumbuka as head p160; refuey will will caus cause us e us harm or remove us from their land. They said they came to ask me to go to them because there were no eligible girls in our clan.

11. l material times after ther the demand was made, I understoe demand to mean that the Konumbuka tribe wanted two women omen as wives and because of that understanding I replied that if they wane to wills my father&ther’#8217;s &#;s ‘head pay’ on the condition that I be allowed to finish my education. At the same timas not happ happy. I felt depreand unable to e to think clearly because I felt pressed to marry. I was and still am n a position to get married. My main concs to complete lete my education. At thAt the same time they did not say who I was to and as such I felt lost, humiliated in the eyes of other people and ashamed at being used used as a form of payment.

12. ټ&#If I refuse, I feaI fear that the Konumbuka tribe woul would harm the other girls in my tribe. nly the girls but the of of the tribe would be at the mercy of the Konumbuka tribe so I agreed to go but only afterafter I complete my education.

13.& I am doing well in my education and am i am interested in pursuing technical training. This take several years.&#rs. I wanwork first and earn aarn a living because it is important for me to be qualified in an area where I can obtain employment aecuri life. I do not want to be a vir&ager #160; living on subsistenrm farming.

14. ټ Further, I am I am not afraid of Toni Boma who is like a father to me. I know that the peouch as h as Toni Boma have the best of my interesheart0; Ho, I do I do not trust nor do I believe that the ythe younger men will behave the same towartowards me once the demand has been made ahad agreed to go over to thto them. I feel that the younger generation may be too impatient and on these grounds I feel threatened and am under pressure.

15. For theoreastas s inedhe fthe foregoing paragraph, I went public h that somebody might help melp me.”

5. FINDING OF FACTS AS TO CUSTOM, ETC

5.1. Custom of “head pay&#

This compensation is different from other types of compensation payment such as where compensation is demanded by the deceased’s tribesmd paid for by the members oers of the tribe whose tribesmen are at fault in causing the death of the deceased. Such compensatioment appeaappear to be straight forward and less complicated. Trm it takes appears to beto be payment in kind or goods.҈ Money and pigs feature prominently is these payments. It does nvolve paymenaymenayment in the form of human beings. kind of coation is wids wids widely practiced throughout the Highlands region and in many parts of Papua New Guinea. There is nblem this and fond ford form of compensation. Indeed, customary compensation in this form form is accepted by the courts in both civd criminal courts. In civil cases fotance, coe, compensation in money, pigs and valuavaluable properties paid by the driver of or vehicle direct to the inhe injured person or the relatives of the deceased person killed in a motor vehicle accident, is deducted from damages awarded to the plaintiff: Audak Kupil & Kauke Kensi v The Independent State of Papua New Guinea [1980] PNGLR 350. In criminal cases, customary compensation in money, pigs and other valuable personal properties in homicide cases has always been taken into account as a mitigating factor on sentence: eg; see Acting Public Prosecutor v Nitak Mangihonde Taganis [1982] PNGLR 299, and Acting Public Prosecutor v Unama Aumane & Ors [1980] PNGLR 510. It is also a of punishmenthment in criminal cases: see Criminal Law (Compensation) Act 1991. Also see The Sv Angaun Kakn Kakas & 3 Ors [1994] PNGLR 20, The State ly Kawa [1994] PNGLR 503.

The present type of compenompensation payment (“head pay”) is complicated because it inv the deceased’s tribetribe paying compensation for the death of one of it’s own tribesman to atribe that is related to the deceased’s clan by marriage. This custom appears twidelwidely practised in the Minj area.

Such custom has far more complex underlying social values associated with inter-tribal marriage in a complicated network of relationships. type mpensation is refs refs referred to as “head pay.” pears from the evidence thce that the payment of “hea” in the form of goods, pigs aney as in othn other type of compensation paymentyments is widely practised and accepted.&#I see nothing wrong with thth the concept of “head pay” involving these forms of payment of “head pay.” The stion of payment of &#of “head pay” in the form of young women as part of “head pay” concerns me and thathe focus of these proceedings. The question is whether the custom of including youngyoung women as part of “head pay” exists in the Minj area and if so, how is it applied and enforced.

On this issue it is necessary to make findings of on the evidence in two (2) (2) areas - first on whether such a custom exists and is practiced today, and second, whether or not such custom was actually enforced or threatened to be enforced against Miriam Willingal.

In relation to the first area, the custom of compensation must be found as a matter of fact before it’s application can be considered. Section 2 of the ms Recognecognition Act (Ch 19) sets out the rules as to proof of custom in the following terms:

“S.2 &#Proofustom

(

(1)&#16) ҈ ctbje thto this Secs Section, questionstions of the existence and nature of custorelato a matter, and it’s application in or rnce to any particular ciar ciar circumsrcumstances, shall be ascertained as though they were matters of fact.

(2) &ـ In cons considerindering a question referred to in Subsection (I), a court:

(a) ;ټ is not not bound ound to observe strict legal procedure or apply technical rules of evidence; and

(b) ټ&##160;l:

(i)p>(i) &ـ a6mit amit and cond consider suer such rech relevant evidence as is available (incl hearsay evidence and expressions of opinion); and

(ii) ټ
t0; oiserwise info inform itself as it things proper.

(3) ټ For ther the purpose of the decision on a question referred to in Subsection (I) a court may:

(b) ; &#160 acc; accept anyt any matter or thing stated in such works as evidence on the question; and of it’s own opinion, call such evidence or require the opinions of such perss it s fit this subsecubsection tion does not limit in any way the discretscretion of the court in obtaining evidence or informing itself on the question.”

In the absence of any publication, books and treatises on this particular custom before me, I will only consider the evidence of custom given by Dr John Muke, Same Imene, Toni Boma and Miriam Willingal.

On the evidence, I make the following observations and findings of fact as to the custom of including women in “head pay” compensation.

1. ټ There is no clear eear evidence of a custom of dealing and including women by force in a “head pay” between tribes in the Minj area.

2. ټ&#T60; iere is and and has always been a general custom of deceased’s mother’s tribesmen requesting the deceased’s tribe to return a young unmarried woman from deceased&;s trprefe the grhe grand-dand-daughtaughter or great-grand daughter of the deceased’s tribe, to marry a man from the deceased’s mother’s tribe. This rt is made as part ofrt of “head pay” at the time “head pay” in the form of material goods is requested or demanded. Depending on how itut, it , it may be a request or a demand. No names of girls areionedioned. No names of the bridegroom from the deceased’s mother’s tribe is mentioned. No time frame is for oung woman to be o be given. The dec tribesmen accept tept this request and make a co a commitment on behalf all the men and wof the tribe. It is understood by botbesribes that the request will be honoured by they the tribe at any time. It could take days, m, yea, years or even the lifespan of several generations for the commitment to be fulfilled. Eve in the tribe includie udie women are aware and co-partakers in this commitment. But the womenpassive co-p co-p co-partakers and the decision is made by en. have no right to make cuse customary commitmentsments on behalf of the tribe.

It is mutual. It is up to the ygirl e tribe to take uake up the challenge when they feel like. The decisy the girl tirl tirl to take up the challenge appears to beluntary decision on the face of it.

In this process, people from the girl’s tr;s tribe talk about their common “hey” commitment with thth the young girl’s of the tribe. The primary focus of attention appears to be the young girls of marriageable age closely related to the deceased by blood. what kind of advice, pres pressure or inducement is broughbear on the eligible girl by both tribes appears to depend pend on the circumstances. The more closelated the gihe girl is to tceased and the more mature ture the girl is to marry, the more intense the pressure appears to be. Ireme cases, this couldlveldlve certain tribesmen from taking more drastic measures sucs such as threat of violence or even death. There appears to be no sard against such extreme elements.

If no suitable gile girl is available, the other distant girls are approached. If and a giom the deceasedeased’s tribe courts and finds a suitable young man from the dece deceased’s mother’s tribe, any agree to marry, marriage takes place in the usual way. Bride is paid by the bthe bthe bridegroom’s tribe. The marriagunderstood by b by both tribes to be a fulfilment of the earlier commitment in “head pay.” I find that th the e of use custom ttom that exists up to this day.

There appears to be three (3) underunderlying reasons behind this custom:

(2) ;&#16cause the dthe deceaseceased’s mother married the deceased’s tribe and bore them children, one of their offspring or relatives should return to her mother’s tribe and beem chn.

There could be a whole lot of other underlying reasons for this custom but these are the main ones that become apparent to me from the evidence.

5.2. The Application of “head pay” custom to Miriam Willingal

In relation to the second area of my findings of fact, I find that in accordance with this custom, the Konumbuka asked for two women from the Tangilka as part of “head pay” for the death of Miriam’s father. I find that no names of girls were mentioned at the “head pay” ceremony and no bride’s name was mentioned and no time frame was fixed for the Tangilka tohonour the commitment. I find that theilka made aade a commitment for some girls from their line to marry a man from the Konumbuka as part of “head pay” payments. I find that the Tangilscusiscussed among themselvich girl was to honour the the commitment. I find that in the coursthof the discussions, Miriam was the primary target of the ssions and considered a suitable candidate for the followinlowing reasons:

(1) ҈ ase w adan adult oflt of marriageable age.