Giving women and customs their place

By PETER DONIGI
HISTORIANS and commentators of elections base their analysis on past experience, that is, the results of previous elections.
This commentary is, therefore, useful for forward planning in some quarters of our society and, especially, our voters in the 2012 election.
It is to be noted that the number of women candidates since 1964 only number 298 out of a total of more than 13,800 candidates. The elections that brought the highest number of women into parliament are the 1977 election.
The number of women politicians then was three. Since then it has deteriorated to one in 1982, zero for the 1987 and 1992 elections, two in 1997 and one each in the 2002 and 2007 elections.
To say that women are a marginalised group in the country would be an understatement, especially when their number is slightly higher than 50% of the total population.
The highest number of female candidates was in the 2007 election where a total of 103 out of a total of 2,759 candidates contested.
In 1977, only 10 contested and three were successful.
The question then is: Why 30% of female candidates in 1977 and 25% of candidates in 1982 were successful while less than 1% was successful since 1982?
Surely, the country must have progressed since 1977 with more educated women out there in the field and the demographics must have changed.
Instead, we find the trend has not remained constant with ostensible growth in society nor increased to any significant strength. What is the cause of the dismal failure in women getting past the post to represent their people in parliament?
We probably need some detailed studies done by our universities. Included is such studies should also be the question as to why our matrilineal societies also prefer representation in parliament by men rather than the women who controlled rights to land.
The proposed women’s bill is in my humble opinion probably not realistic in the longer term. It is merely a short term measure and something ought to be done for the longer term in our society.
People may argue against it as derogation on the constitutional right to be elected to Parliament by universal suffrage.
The question is whether such grandiose human rights virtue (universal suffrage) is appropriate for a developing country that is not founded on European values but on customary values since time immemorial.
Section 55 of the Constitution does provide the following:
55. Equality of citizens
      (1) Subject to this Constitution, all citizens have the same rights, privileges, obligations and duties irrespective of race, tribe, place of origin, political opinion, colour, creed, religion or sex.
      (2) Subsection(1) does not prevent the making of laws for the special benefit, welfare, protection or advancement of females, children and young persons, members of underprivileged or less advanced groups or residents of less advanced areas.
The constituent assembly, in adopting this section, knew that our customs would not provide an equal basis for representation in Parliament or in other levels of industry and society generally and provided in section 55(2) that parliament in its wisdom may make laws for the special benefit and advancement of the female members of our society.
The women’s bill, if brought into force of law, is only an expression of parliament that it acknowledged the special circumstances of a class of voters in our society that has been marginalised because of the universal suffrage requirements of western cultures, traditions and societies which is in fact inimical to the advancement of women representation in parliament in Papua New Guinea.
Not all western values are suitable to Papua New Guinea and it may be time to begin a process of identifying and isolating which ones should be adopted and which should be rejected.
In this regard, our Constitution also provides for that too. It stated specifically in the schedule to the constitution that customary laws should take precedence over English law and practice.
In other words, English law and practie are adopted into our society subject to our constitution and customary laws and where there is a conflict between our customary law and English law, customary law prevails. This statement of law does not mean that all customary laws are part of the legal system of Papua New Guinea.
The schedules to the Constitution also provide that where the customary law is inconsistent with a constitutional law or is repugnant to the general principles of humanity then it is not to be enforced as part of the underlying law of Papua New Guinea.
This principle would exclude customary law that requires say pay-back killings and other such practices.
This is very important when it comes to land rights. The principle of English law that provides for adverse possession of land is inimical to the interests of our society as it is contrary to most customary law principles.
The application of this principle by courts and land titles commission may have contributed to the increasing number of court cases being filed and land disputes in this country.
The principle of adverse possession in English law has no application in PNG tribal societies. Clans and tribes know their boundaries since time immemorial and the realignment of these boundaries to establish pockets of land owned an settled by outsiders inside clan or tribal boundaries by courts will not auger well for the people of this country.
It will bring about more disputes and will contribute to more lawlessness. It will not solve the problem of land disputes.
Clans and tribes have since time immemorial protected their borders and visitors on their land are required to follow rules established by the pre-eminent title holder which is the clans or tribe that permitted settlement by outsiders within their boundary either for humanitarian or commercial grounds.
The customary principle of law against adverse possession is also founded in Christian principles where it was stated: “cursed is the man who moves the boundary stone” [Deuteronomy, 27:17]
Sir Arnold Amet moved the boundary stone in the Hides land case when he was a land titles commissioner where he applied the English law of adverse possession to ostensibly resolve the land dispute in the Hides gas project.
This dispute is not over and is subject of a number of court cases.
The members of the Tuguba tribe are contesting their rights to the Hides gas field as against the descendants of a Huli man that was given shelter by them on humanitarian grounds.
The above is only an example of the potential problems of applying English and western concepts and traditions to a traditional society that has existed since time immemorial.
In this consideration, it should be remembered that it has been scientifically proven that Papua New Guinea as a settled community has existed and founded agriculture in ages when the British isles was still a hunter gatherer society. 
Caution, therefore, must be displayed by all when trying to adopt outside influence, cultures, laws and traditions.
The boundary stone has been moved by a number of laws, such as the Mining Act, the Oil and Gas Act, the Forestry Act and other land and resources laws in this country by governments controlled and led by Sir Michael Thomas Somare since Independence.
Why can this be a fact?
The answer is simple. Every political party that has either been led by Sir Michael Somare or where he is a member has won the largest number of seats in parliament and percentage of the votes cast at the elections for the following election years: 1977, 1982, 1987, 1992, 2002 and 2007.
He has been at the forefront for changing the face of Papua New Guinea to allow the stealing of our people’s wealth over this time by endorsing legislation that moved the boundary stone over our land and resources.
It may now be an appropriate time to begin to restructure the nation so that the marginalised portion of our community namely the women are given privileged position not only in our homes but also in the political structure of the country.
Consideration should be given to changing of the laws to allow for representation based on votes and weighted average based on sex (not sexual orientation) in a given electorate. This is just a suggestion.
The form and methodology should be determined after an appropriate research is conducted by research institutions in this country. The research suggestions must be home grown and not based on western concepts.
In perhaps an alternative vision of a future Papua New Guinea, one could envisage a society that is proportionately represented in parliament and that parliament should represent the basic fact that the society cannot be functionally established without a man and a woman and as such must truly represent what was created as part of the natural order of the world, if this does make sense.
lPeter Donigi is a senior lawyer who has authored books on land and its place in PNG traditional and modern culture and has served in various senior capacities including as PNG’s ambassador and currently is consulting with Warner Shand Lawyers.