Women Speak Out! A Report of the Pacific Women's Conference. October 27 – November 2
Papua New Guinea
LAW REFORM AND ITS IMPLICATIONS FOR WOMEN IN PAPUA NEW GUINEA Common Legal Problems of Women in PNG
The Law Reform Commission was established in April 1975 to review all the Laws of Papua New Guinea and suggest reforms page 59 that will make the laws more suitable to the conditions and needs of this country. The Commission reports to the Minister for Justice. There are five Commissioners, all Papua New Guineans:
Nahau Rooney, a social welfare worker, from Manus; Charles Lepani, Director of the Central Planning Office, from the Trobiand Islands;
Meg Taylor, a lawyer working in the Prime Minister's Office, from the Waghi Valley.
The varied occupations and backgrounds of the Members express the Minister's intention that the Commission should not be composed just of lawyers from the capital city, but should represent many different professions and regions in Papua New Guinea.
In order to make the law more suitable to Papua New Guinea, the Commission must look at two things – (1) the traditions of the people as expressed in their customary law, and (2) the aims and needs of the people as expressed in their new Constitution. Sometimes, these two sources of the law oonflict. This is especially true in the field of women's rights.
and the second clause:
“We declare our first goal to be for every person to be dynamically involved in the process of freeing himself or herself from every form of domination or oppression so that each man or woman will have the opportunity to develop as a whole person in relationship with others.”
“We declare our second goal to be for all citizens to have an equal opportunity to participate in, and benefit from, the development of our country.”
“recognition of the principle 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.”
Thus, in the Constitution, the Law Reform Commission find a clear directive to propose laws that help women become equal. But, when the Commission looks to customary law, our other major source for law reform, we find many laws and practices that go against equality for women.
In the field of succession: Under customary law, it is men who inherit property, not women - even in matrilineal societies, the land passes through the women's line, but goes to men in that line. In most PNG socieities, when a man dies, his sons or nephews inherit his land. His daughters may receive some fruit trees or personal property, but they do not get parts of their father's land. And, when a man dies, his wife does not expect to inherit anything - even the children, who stay with their father's line. In fact, in many PNG societies, wives themselves can be inherited. When a man dies, his brothers inherit his wife or wives.
In family law: Under customary law, the men of the clan “own” the women. A girl does not choose whom she will marry - her father and uncles, and sometimes her brothers, choose for her. They do not make the choice based on her happiness. They choose a husband for her according to what will be good for the clan. Thus, if they wish to form an alliance with the men of another clan, they will marry her into that clan. If they have killed a person in another clan, they will marry her as part of the compensation payments to that clan, so that she can produce a child for that clan to replace the person who was killed. Women often found themselves, in the days when clans frequently went to war, married into a clan that had become enemies of her own clan. Sometimes, when the two clans went to war, the woman's husband killed her because she was a representative of the hated enemy.page 61
Marriage involved an exchange of valuables - pigs, shells, and (today) money. This was called the “Bride Price”, but none of it ever went to the bride. It went from her husband's family, who were buying her and the children she would have, to her father's family.
Men in Papua New Guinea could have many wives, and rich men did have more than one wife. Women were not expected to love their husbands - or to be loved by them. They were expected to work long hours in the gardens, then walk home carrying huge loads of firewood and food, then go to the river for water, then cook dinner - and through it all, tend the children. While they did all this work, the men occassionally hunted or fished - or mostly sat under the trees and “protected” the women from enemy attacks.
In divorce law: This was probably the only area of family law where women had any equality. A woman could, if things got too unbearable, leave her husband and return to her own page 62 family. However, women found it difficult to do this for two reasons: (1) her family would have to return the bride price they had received for her, if the divorce turned out to be her fault and not her husband's. Her family might therefore be unwilling to welcome her back; (2) if she came from a patrilineal society, she would not be able to take her children with her when she leaves her husband - they belong to his clan.
In property law: In a few areas of PNG, women could and did own land or other important valuables. But, in most societies, although women did most of the work in the gardens, it was men who owned the land on which the gardens were made and the houses built. Men also owned the shells and other valuables used in trade and prestige ceremonies. Women did all the work of caring for pigs - even breast-feeding sick piglets - but their husbands owned them and decided when they would be traded, killed for a feast or given to someone else.page 63
And, in most societies, men built sacred houses where they kept masks, drums, flutes and other ritual objects; women were not even allowed in the houses, let alone to own anything in them.
In criminal law: Adultery law is a good example of the way that customary law considered women to be the property of men - of their fathers and brothers before they were married, and of their husbands afterwards. A married man could, in most societies, have intercourse with whomever he wished. Men frequently raped the women of a conquered village. But it was considered a great crime for a married woman - or even a single girl - to have intercourse with someone other than her husband. She would be punished severely for it, and the man who had intercourse with her would have to pay compensation to her family. This is because a woman's sexual ability - particularly her ability to bear children – was “owned” by her father and his clan. It was the commodity they sold when they married her to someone. After her marriage, it was owned by her husband and his clan.
This is a very one-sided picture of Papua New Guinea customary law. There was much in our customary life that was good for both men and women. But I have presented this side of things in order to emphasise the difficulty that our Law Reform Commission has faced in creating laws that will, at the same time, promote equality for women and preserve customary law.
Aims of Law Reform Commission:
The Law Reform Commission has attempted to solve this problem - of a conflict between customary law and the Constitution - in several ways:
(1) Recognising that the Constitution is now the basic law of our country and that the Parliament considered all the demands of custom in formulating the Constitution, we choose the Constitution over the customary law whenever we are forced to make a choice.
(2) Before we drafted any new laws, we talked about page 64 them at great length amongst ourselves, and then sent out working papers to many members of the public - including women's groups, local government councils, Members of Parliament, leaders in government and business and religious groups. The responses we received from the public did two things:
(a) they let us know what issues people feel very strongly about, and how they would like the law to be; (b) they helped - as do our meetings with people - to educate people about new laws. We realised that, much as we wanted to preserve our traditions, some changes will be necessary in order for PNG to develop. But these changes will be impossible or useless, unless the people see the need for them and agree to them. So we go to the people with every new law we propose.
(3) I should point out that, in many areas, the Constitution and the customary law are in agreement, so there are many new laws we can propose that will be much closer to the people's traditional ways of doing things than were the laws introduced by the Australian colonialists. For example, we have recommended that the imported crime, vagrancy, be abolished. Under the colonialists, people without a job could be arrested, even though they were living with their relatives who were supporting them. We recognised that it is the PNG way to support one's kin, so we recommend that this law be abolished.
Changes which will benefit Women:
Areas in which the Law Reform Commission has recommended changes that will benefit women or make them equal to men:
Prostitution: we have recommended that prostitution be legalized, but that men who keep houses of prostitution still be liable to a fine or jail. This will, we hope, curb the kinds of men who live off prostitutes, and at the same time permit women who are prostitutes to avoid the shame of frequent meaningless arrests. We have also recommended that V.D. Clinics be established. Once prostitution is legal, more prostitutes will make use of V.D. Clinics because they will not be afraid of arrests at them.page 65
Adultery: we will probably recommend that adultery cease to be a criminal offence. Currently under the Native Regulations, adulteres can be fined or jailed – but only Papua New Guinea adulterers. The current law specifically applied only to “natives” of our country and not to expatriates. We will probably recommend that adultery be treated not as a criminal offence but as a civil matter in the village courts. We will also recommend that compensation be available not only to men whose wives commit adultery but also to women whose husbands commit adultery.
Drunkness: in the towns, especially, drunkness bas become a great problem. Working men spend their entire fortnight's paycheck at the bar, often get into fights, and come home with no money for their wives to use for food and clothing and school fees. The law as it now stands, knows only one way to handle the problem – drunks are arrested and thrown into jail, making it even harder for their wives to make ends meet. We have recommended that drunkness by itself no longer be a crime, but that habitual drunkards can be sent to a magistrate for treatment. We are also considering recommending that women be allowed to collect part of their husbands' salaries directly from his employer, if the husband is shown to be a person who frequently drinks up all his pay.
Succession: we will probably recommend a new kind of succession law that falls somewhere in between customary law, which left no property to a man's wife, and the imported law, which leaves all a man's property to his wife, ignoring the claims of his clan and relatives. We hope to work out a formula that gives women equal rights to inherit property, but which also recognised the need to maintain strong clan structures. We shall probably do this either by reserving a certain percentage of a man's property for his wife, or by declaring that wives are full members of clans, can become heads of clans even, and therefore, should receive equal shares in whatever the clan receives.
Marriage and Divorce: we are planning to begin research page 66 in the near future into the whole fied of family law, with a view of completely reworking current marriage, child welfare and divorce laws. There are many issues here that we must consider. Women's rights are, of course, a major issue in this area. But there are also questions such as: should polygamous marriages be recognised? What should be the status of illegitimate children? Should divorces be easy or difficult to obtain? We intend to go into this whole field in great depths, and to spend a lot of time talking to women's groups and to people all over the country, before we make any final recommendations.
Maintenance: Currently, in PNG, a woman can receive payments from a man who has fathered her illegitimate child. And a wife can receive payments from her husband for herself and her children, if the husband actually deserted her. But a woman cannot receive payments, until the divorce is final, for herself or her children, if she left her husband – either through her fault or because he was impossible to live with. We intend to change this law.
Law Reform in Papua New Guinea:
The whole process of Law Reform will be tedious. A benevolent government can assist, but one that is ignorant of the fact that law can be the most effective instrument for social change will merely perpetuate the existing system. Government policies become mere words if law does not change to implement the goals of the present-day government.
The whole direction of our country's development can be changed if we choose for a legal system that belongs to us – where the process of law is in the hands of our people, both in rural villages in in urban communities. Papua New Guinea has made a positive step towards this with the establishment of village courts. We are fortunate in that PNG has its traditional structure of village and clan groupings to build on – not only for legal services but for every service this will fulfill our goal of self-reliance.page 67
The village court may not provide what remedy a village woman may want, but the fact is that she can take her complaints to a village court magistrate, litigate on the spot, get a decision. The process is one she can understand, the punishment is one that is understood by the community. There is no concept of “imprisonment” in PNG society. Dispute settlement or punishment is governed by the norm of compensation, restoration of harmony and “shame” in the eyes of one's community.
At this stage of PNG's development, only a few months after Independence, no real choice has been made as to whether the country will continue to live with a legal system that perpetuates a capitalistic society or a socialist/communalistic society. Our eight aims direct us, but the reality is we are caught up in a legal/economic system that is powerful, manipulative, and one that offers a struggle if we choose a break-out. The effect of any such decision will affect women who are the consumers of services and economic consumers in society.
One pressing problem in the field of economic law is the informal sector. Health regulations prohibit persons selling from streets – a set of values for clean Australian streets. Consequently, our people are deprived of a means of livelihood. It perpetuates the interests of a foreign businessman. Our people are then picked up by police for vagrancy. A vicious circle – the innocent person caught up in the middle of it.
The point I have been trying to make is that the legal problems, the frustrations in our country are evident because of the conflict arising between traditional norms and imported legal and economic systems and values.
The section of the community who never rise to oppose and never really challenge it are the mass of women. As the consumers of services in the country, the catalyst for entrenching foreign interests, the women can be effective if they challenge the systems we are living in.
The challenge to PNG women now is do we continue to live page 68 in this Australian-orientated society? It won't be easy to change, it will be a struggle for our economic freedom through the change of laws that manipulate our lives.
The Law Reform Commission is one channel that can be used.