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Papua New Guinea Law Reform Commission |
LAW, ETHICS AND HIV/AIDS
EXISTING LAW OF PAPUA NEW GUINEA
A Joint Working Paper of the
Law Reform Commission and the Department of Health
prepared by
Christine Stewart
Legal Officer - Drafting
Papua New Guinea Law Reform Commission
Printed by Department of Health, P.O. Box 3991, BOROKO
February 1993
This paper was prepared for the UNDP HIV and Development Programme Regional Network - Asia and the Pacific. The author is a member of the National AIDS Committee Legal Sub-Committee, other working members of which are: Mr. Pascoe Kase, Legal Officer, Department of Health, and Dr. Tompkins Tabua, Director, STD/AIDS Unit. The author acknowledges their assistance and co-operation in the preparation of this paper.
The views expressed in this paper are those of the author and not of the Law Reform Commission or the Department of Health.
CONTENTS:
Introduction 1
(a) Cultural Setting 1
(b) Legal System 2
(c) Dimensions of the Epidemic in Papua New Guinea 4
1. Public Health 6
1.1 Surveillance 6
1.2 Notification 6
1.3 Testing 6
1.4 Compulsory Treatment 7
1.5 Quarantine 7
1.6 Drug Trials 7
2. Confidentiality and Discrimination 8
2.1 Confidentiality 8
2.2 Duty to Disclose/Rights to Medical Information 8
2.3 Partner Notification 8
2.4 Duty to Treat 9
2.5 Discrimination 9
2.6 Civil Liability 9
3. Women's Issues 11
3.1 Vulnerability to HIV 11
3.2 Status within families and societies 11
3.3 Economic Rights 11
3.4 Role as Carers 11
3.5 Strategies for Empowerment 11
4. Information Law 12
4.1 Rights to Information 12
4.2 Obstacles to HIV Information 12
4.3 Sex Education 12
5. Families and Careers 13
5.1 Inheritance 13
5.2 Marriage, Divorce and Separation 13
5.3 Maintenance 13
5.4 Custody and Adoption 14
5.5 Carer and Survivor Support 14
5.6 Non-consensual sexual intercourse 14
5.7 Termination of Pregnancy 15
5.8 Age of Marriage and Sexual Consent 15
6. Prisons 16
6.1 Testing 16
6.2 Segregation and Preventive Measures 16
6.3 Counselling, Care and Support 17
6.4 Early release 17
7. Employment Issues 19
7.1 Workplace Testing 19
7.2 Policies on HIV Infected Persons 19
7.3 Sick Leave 19
7.4 Disability Support 19
7.5 Occupational Health and Safety 20
7.6 HIV Education in the Workplace 20
8. Criminal Law 21
8.1 Transmission Offences 21
8.2 Drug Use 21
8.3 Sex Workers 21
8.4 Homosexuality 22
8.5 Illegal Treatment and Advertising 22
9. The Legal Process 23
9.1 Access to the Law and Legal Aid 23
9.2 Evidence 23
9.3 Courtroom Procedure 23
9.4 Sentencing 24
---------------------------------------------
Introduction
(a) Cultural Setting
Some 85% of the population of nearly 4 million lives in traditional village settings in rural areas, which may be extremely remote and inaccessible. Access is often limited to poor bush roads, small plane airstrips or walking tracks only. In coastal and island regions, and on the major river systems, small boat and canoe transport is common. Despite this, there is a high casual flow rate between rural and urban areas. Cash cropping and access to money have intruded to varying degrees into the subsistence economy.
Village societies are small homogenous groups characterized by face to face relationships and group allegiance determined by one of the very wide variety of kinship systems, ranging from patrilineal/patrilocal through bilateral to various types of matrilineal society. Traditional values, rights and obligations pertain not to the individual but the group, from which the individual's status and position in society is derived.
Traditional society is egalitarian and pre-literate, with an absence of a hereditary ruling class and minimal written community records. There are approximately 800 different languages spoken (and hence as many different variations on social structure) some numbering several thousands of speakers, some spoken in only one village or local area. Two lingua francas and English are the three official languages, with English predominating as the language of business, government and the official sphere, and Tok Pisin as that of spoken communication. Not everyone speaks even one of these three languages. The literacy rate is low and opportunities to enter the formal education system are limited.
Christianity is the professed religion of almost the entire population, with the Catholic, Anglican, Lutheran and United (Protestant) churches predominating, though a wide variety of fundamentalist churches are also present. Religious adherence tends to be determined by village or cultural group, rather than individual choice. Despite the advent of Christianity, traditional religious beliefs, including those of good and evil spirits, sorcery (white and black), telepathy etc. persist at all levels of society, side by side or even syncretized with the introduced religious systems.
Urban centres (the largest being the capital Port Moresby, population approximately 200,000) are characterized by a high rate of urban drift and slum squatter residence, low levels of industrialization and high unemployment.
Traditional economy is based on subsistence horticulture. For many this is their only means of survival. The national economy relies heavily on imported goods, offset by exports of tree crops, which are declining in value, and minerals and oil, which are rising dramatically. The country is governed by a Westminster-style National Parliament, elected by universal franchise, and Provincial Assemblies for each of the 19 provinces. Government authority is comparatively weak, which gives rise to constant demands from various sectors of the society for the imposition of draconian measures to combat social problems.
The depressed economy and the low level of national unity give rise to much violent crime, principally robbery, rape and murder. This is not confined to urban centres alone. Nation-wide cultural traditions of xenophobia and retaliation legitimize self-help measures for the redress of wrongs. This can take place on an individual or group level. Tribal clashes are frequent, even in "mixed" urban areas, and may continue for long periods of time.
A government radio network covers most of the country but provincial radio stations face severe funding and maintenance difficulties and closures are frequent. Domestic television consists of one commercial station available only in urban centres. One daily and several weekly national newspapers circulate widely. Despite high illiteracy rates, there is a keen demand for printed material. One feature of informational culture is that village societies tend to accept the first message, however inaccurate, as the true message, and this attitude tends not to change despite subsequent re-education efforts.
Health services are provided mainly by the government. Private doctors practice in the larger urban centres, and missions operate their own services in remote rural areas. Large employers, such a mining companies, are required to provide medical facilities on-site. Government health services, provided through the Department of Health and Provincial Governments, are relatively inexpensive, but problems are frequently faced with funding, staffing and drug distribution, etc.
(b) Legal System
Adopted from the English common law adversarial system, with a typical appellate court hierarchy, principles of stare decisis etc. The National Court is the first superior court of record, and the Supreme Court is the original court of Constitutional interpretation and ultimate appellate authority. Most overseas decisions have persuasive authority only. A substantial body of indigenous case law has developed since Independence in 1975.
The inferior courts consist of District Courts, each declared for its own area which is in practical terms a province, and limited jurisdictionally in other ways as well;[1] Local Courts with a more limited jurisdiction still;[2] and Village Courts, which apply customary principles to village level-disputes and are subject only to the Constitution and to laws which are specifically applied to them.[3] These courts operate with varying degrees of success and adherence to constitutional principles.
The formal courts are paying increasing attention to custom, which may be pleaded as a question of fact. Due to the diversity of cultures, however, a unified customary law is unlikely to develop, though general trends can be extracted.
The Constitution, adopted at Independence in 1975, is one of the world's lengthiest and most detailed. It commences[4] with a statement of National Goals and Directive Principles, Basic Rights and Social Obligations, which are non-justiciable but are the yardstick against which national law and policy is to be formulated and measured. It is notable for its entrenchment of human rights, largely following upon the Universal Declaration of Human Rights. These are predicated on the concept of the rights (and obligations) of the individual, in contradistinction to traditional Papua New Guinea societies, whose mores are founded on the rights and obligations of the group.
Rights[5] are classified into fundamental and qualified, with some of the latter applicable to citizens only. All such rights are enforceable by the National and Supreme Courts, either on the court's own initiative or on application by any person interested in the protection or enforcement of the right, both upon cases of actual or imminent infringement and situations of a reasonable probability of infringement. The independence of the judiciary and the comparative ease of access by the literate and urban population to the courts has meant that rights are strenuously upheld, where adjudicated, and a considerable body of constitutional case law has already developed. The main inhibiting factors to this process have been widespread ignorance of constitutional rights and the legal process, and illiteracy and remoteness in the rural sector.
Fundamental Rights are:
Right to Life (Section 35)
Freedom from Inhuman Treatment (Section 36)
Right to Protection of the Law (Section 37).
Other Rights are each defined in detail and at length, and may be qualified generally in the interests of defence, public safety, public order, public welfare, public health, the protection of children and persons under legal or practical disability, the development of underprivileged or less advanced groups or areas, or to protect the rights and freedoms of others, to the extent that the qualification is reasonably justifiable in a democratic society.[6] The validity of any qualification or definitive interpretation may be and often has been adjudicated by the Supreme Court.
The HIV/AIDS epidemic has implications for nearly all human rights, but the primary operational right is the Fundamental Right to Life. AIDS threatens human life, and governments and the international community are obligated to take all measures to protect human life. Hence any action which prohibits or restricts an individual's ability to protect him or herself from contracting AIDS contravenes this most fundamental of rights.
The most notable Qualified Right in the context of HIV/AIDS is Section 49, the Right to Privacy, in respect of personal and family life, communications and personal papers and effects.
As the bulk of the nation's statutory law was formulated prior to the Constitution, it is possible that many statutes are in conflict with the Constitution's basic principles, and some of their provisions may be unconstitutional. Many such matters remain to be tested in the Supreme Court.
Criminal law is codified, and is primarily governed by the Criminal Code (Chapter 262), which was adopted from the Code of Queensland. Much of it persists in its original form, with no modernization or adaptation to the country's circumstances.
Papua New Guinea's legal system, consisting of a body of imported law which is often paternalistic, outdated and inappropriate, a modern and detailed system of entrenched constitutional rights, and a growing recognition of general trends in customary law which are often in conflict with both of the foregoing, contains fundamental tensions and conflicts, many of which remain to be resolved.[7]
(c) Dimensions of the Epidemic in Papua New Guinea
By late 1992, 127 HIV infections and 46 AIDS cases had been identified. The great majority of these were detected in the Capital. Slightly over half of infected persons are male, and the principal age category for both sexes is the 15-30 age group.[8]
A high rate of under-reporting is suspected for Papua New Guinea. High levels of many tropical diseases, including malaria in all varieties including the most virulent; the remoteness of much of the country's population and the inadequacies of health outreach services; and the customary attributing of deaths to supernatural causes, means that many cases of HIV infection may well have occurred, and resulted in AIDS death, without anyone being any the wiser.
The predominant mode of spread is heterosexual activity, with some consequent perinatal infection. Only one case of transfusion infection has been reported and the transfusion took place overseas. Within the country, 93% of blood transfusion supplies are screened, the remainder being used in remote areas. The Department of Health has established Infection Control Guidelines for HIV/AIDS and other Blood-Borne Infections, for all its medical facilities. Intravenous illegal drug use is so far unknown, and the only real danger of blood transmission lies in traditional tattooing practices and other cultural practices (whether traditional or otherwise) which may involve shared cutting and piercing instruments.
A National Policy Document prepared in the Ministry of Health was endorsed by the National Executive Council in 1988. The Department of Health was directed to formulate a medium-term (5-year) plan; to safeguard personal identity and insist of prior consent for testing; and to include "groups such as Prisoners, Stewards and Stewardesses, Police, Defence Force Personnel and Prostitutes in the proposed sentinel groups".[9]
To date, few of these directives have been implemented. Initiatives of other Departments so far have been taken by the Defence Force, which has instituted testing as part of the Annual Medical Board;[10] and the Foreign Affairs Department, which has established negative-testing requirements for some categories of alien entrants, although policy does not appear to have been cohesively formulated and is somewhat arbitrarily applied. The Education Department is commencing policy formulation in relation to classroom operations etc. In the private sector, Ok Tedi Mining, which operates a large mine in a remote area, has set a policy in place;[11] other commercial enterprises, both statutory and non-government, have so far failed to do so despite encouragement.
A Medium Term Plan was Developed in 1989, by WHO and the Department of Health. A review in 1992 found that excellent progress is being made, although much anticipated funding has not been forthcoming and the programme suffers lack of resources, staffing etc.[12]
Epidemic management is currently vested in the Department of Health, which has established a National AIDS Committee (originally the National AIDS Surveillance Committee, established in 1986) to advise the Departmental Secretary. Committee membership is drawn from the public and private sectors. The committee currently meets quarterly and works through Education, Research, NGO and Legal Sub-Committees. A WHO epidemiologist works with the Department, which also has close links with the Medical Faculty of the University of Papua New Guinea and the Institute of Medical Research in Goroka.
No public health legislation has yet been enacted specifically in respect of HIV/AIDS. The existing Public Health Act (Chapter 226) contains separate Parts for: infectious diseases, with provision for proclamation of a disease; venereal diseases, which are exclusively defined in the body of the Act; and other special provisions for typhoid, Hansen's Disease and malaria. The Part most appropriate as it stands at present for HIV/AIDS would be Part V. - Venereal Diseases. Should it be considered appropriate to bring HIV/AIDS within the ambit of this Part of the Act, legislative intervention will be required. The decision to include or not will depend on the direction of policy formulation and the extent of its conformity with the existing provisions of the Act. For example, Part V. includes provisions and procedures for treatment and cure which are inappropriate to HIV/AIDS, and some partner notification requirements which may run contrary to policies on confidentiality. Some amendment may be necessary to take account of such matters. Consequently, references to the Act in this paper are made for information purposes only, and should not be taken to refer to HIV/AIDS.
Medical ethics in Papua New Guinea are monitored by the Medical Board, which has disciplinary jurisdiction over registered medical practitioners, dental practitioners and allied health workers, including the power to reprimand, suspend or de-register the practitioner. Nurses and nurse aides are similarly governed by the Papua New Guinea Nursing Council.[13] The Medical Society of Papua New Guinea has the responsibility of informing doctors of their duties and the ethical demands of their profession. The Society has drawn up a Code of Ethics based principally on those published by the World Medical Association, the Fiji Medical Association and the Hong Kong Branch of the British Medical Association. Although such a Code does not have the force of law, its contents may be used in determining the standard of care required of a doctor.
1. Public Health
1.1 Surveillance
A WHO epidemiologist is working with the Department of Health, principally but not exclusively on HIV/AIDS.
Anonymous testing of some 93% of donated blood is carried out, with infected batches being discarded.
Anonymous non-consensual surveillance testing has recently been carried out at 12 ante-natal or STD clinics, for public health informational purposes only. This project has just concluded but may be resumed again later.
Data on positive testing, wherever carried out, is forwarded to the STD/AIDS Unit headquarters, where it is collated and circulated in statistical form. Quarterly reports are published.
1.2 Notification
There is no current legal requirement for notification of HIV infection. However, anonymous or coded test result reporting is collated at the STD/AIDS Unit of the Department of Health. Reporting is relatively comprehensive, although substantial under-reporting is recognized. It is from these reports that the national database is compiled, and a quarterly report has been distributed since late 1990.
Part V. of the Public Health Act provides for the appointment by the Minister of a Commissioner for the purposes of the Part (Section 49). There have been many departmental reorganizations and reclassifications since the Act was originally written, and the present-day equivalent of the position is Senior Medical Officer, STD/AIDS Unit.[14]
Medical practitioners diagnosing a case of a venereal disease must notify the disease to the Commissioner (Section 52). The practitioner must also advise the sufferer of the dangers of infection and the "legal consequences" of infecting others, and warn him/her against contracting a marriage until cured (Section 53).
1.3 Testing
Under the Medical Code of Ethics, no-one may be required to submit him/herself for medical examination unless the law requires it.
Test specimens are taken at STD clinics; provincial hospitals, health centres and subcentres; special survey sites; and private practitioner surgeries. Serodia and ELISA tests are performed in Papua New Guinea; Western Blot confirmation is carried out in Australia. Coding is used to identify specimens and other patient data are collected.
Mandatory nominal testing may infringe the Qualified Right to Privacy, unless it is carried out in an "optional" situation e.g. for employment application. So far, such testing is performed in only three specific instances, on Defence Force servicemen, foreign work applicants and job applicants to one large mining company.
The Defence Force has instituted a policy of mandatory testing of all applicants for enlistment, and all servicemen as part of their Annual Medical Board. Voluntary testing of authorized civilians, and the families of servicemen, is encouraged. Alongside these testing policies, the Force has instituted strong awareness measures, including the promotion of its own brand of condom.[15]
Where applicants for entry visas are required to undergo medical testing before entry (e.g. applicants for work visas), an AIDS test is now required as part of the medical.
Ok Tedi Mining requires a pre-employment medical for prospective employees. There is no obligation on existing employees to inform the company of their HIV/AIDS status, nor are they required to undergo testing.[16]
1.4 Compulsory Treatment
Under the Code of Ethics, no-one is compelled to submit him/herself for treatment unless the law requires it. It is the patient's consent which makes it lawful for the doctor to examine or treat.
Section 56 of the Public Health Act requires a person becoming aware that he is suffering a venereal disease to consult and place himself under the treatment of a medical practitioner, clinic or hospital within 3 days for the purposes of treatment, and must continue to present for treatment at prescribed intervals until certified cured.
1.5 Quarantine
Part IV of the Public Health Act provides various anti-infection measures, including quarantine, for declared infectious diseases, although these have rarely been imposed in practice. In the light of the Constitutional Rights to Liberty of the Person in Section 42, and The Right of citizens to Freedom of Movement within the country in Section 52, the imposition of any legislative restrictions, such as quarantine, on HIV/AIDS sufferers would prove difficult. Even if such measures were to be attempted on the grounds of public health, they may possibly be held unconstitutional.
1.6 Drug Trials.
In the field of clinical research, the Medical Society recommends that the principles laid out by the World Medical Association be followed. These include conformity to the moral and scientific principles that justify medical research; careful assessment of inherent risk; the subject's freely given consent should be obtained after full explanation of the nature, purpose and risks of the research has been given, and consent may be withdrawn at any time; personal integrity of the subject should be safeguarded.
The Dangerous Drugs Act (Chapter 228), the Drugs Act (Chapter 229) and the Poisons and Dangerous Substances Act(Chapter 231) govern the import, compounding and sale of drugs, poisons etc. The Acts are administered by the Minister for Health and the Finance Minister insofar as they relate to the import of drugs. Additionally, items may be declared prohibited imports under the Customs Act (Chapter 101) and Regulations. Drug and vaccine trials could be controlled and monitored by the provisions of these Acts.
2. Confidentiality and Discrimination
2.1 Confidentiality
Under the Code of Ethics, a doctor owes his patient absolute secrecy on all matters confided to him. There are some exceptions to the preservation of the bond of secrecy: where the patient gives consent; in the interest of all concerned; where required by law; where there is a question of danger to society. On the other hand, in serious illness where the likelihood of recovery is slight or absent, the doctor may, acting in the patient's best interests, inform a near and responsible relative of the true state of affairs and discuss how far to go in informing the patient. However, the Code does not have the force of law, and any statutory or judicial requirements of disclosure will override the Code's adjuration to preserve secrecy.
Under the Public Health Act, it is both an offence and professional misconduct for a medical practitioner to divulge personal particulars of a person suffering from a venereal disease otherwise than in accordance with the Act.[17] For other such medical matters, the imported legal system imposes the equitable duty of confidence on medical practitioners and so on, with the possibility of a tortious or contractual action for breach. The Constitutional Right to Privacy would extend to communications between a patient and a health care worker. The only proven exception so far to this is a situation where the patient chooses to take the matter to law, in which case medical information should be subpoenaed and come within the custody of the court in the first instance.[18]
Ok Tedi Mining, which provides an industrial and a clinical medical facility in an isolated environment, specifically insists on a policy of confidentiality regarding medical records for all its employees.
2.2 Duty to Disclose/Rights to Medical Information
Under Section 19 of the Evidence Act, medical communications made by a patient to a medical practitioner or his delegate are privileged, except in criminal proceedings (and see 9.3).
Section 51 of the Constitution, Right to Freedom of Information, guarantees to citizens the right of reasonable access to official documents, subject only to the need for secrecy in respect of, inter alia, the maintenance of personal privacy and security of the person. This is a Qualified Right and may be restricted by a law made in the interests of public health, public welfare etc.
2.3 Partner Notification
No partner notification is currently required by law, although the presumption that a doctor has a responsibility to protect others from infection by tracing contacts probably operates. Positive test results are notified to the medical care provider or AIDS counsellor who ordered the test. Both are encouraged to involve the other in counselling, follow-up and partner notification.
A medical practitioner diagnosing a case of venereal disease as defined under the Public Health Act must warn the sufferer of the dangers of infecting others, and against contracting a marriage until cured.[19] Where the practitioner has reason to believe that a person so suffering intends to contract a marriage, he may, after intimating his intention to his patient, warn the intended spouse or his/her parents or guardian, and the Commissioner.[20] Anomalously, there is no mention of the practitioner's right or duty to warn those who are already spouses.
2.4 Duty to Treat
The Medical Code of Ethics imposes a duty on a doctor to give his best care and attention to his patient, regardless of race, religion, tribe, social position, political party or ability to pay, and a doctor must give necessary treatment in an emergency.[21] However, medical services are limited in the more remote areas of the country and medical care is not always available.
2.5 Discrimination
The Constitution in Section 55, Equality of Citizens, guarantees to all citizens "the same rights, privileges, obligations and duties irrespective of race, tribe, place of origin, political opinion, colour, creed, religion or sex". Laws may however may take affirmative action for females, children, youth and the under-privileged or less advanced.
For employment generally see 7.2.
The Defence Force policy is to refuse admission to the Force of applicants who test positive. Servicemen testing positive who show no evidence of progressive clinical illness are not discharged, but are limited to base duties only within the country, as far as possible in non-combat roles. Those who demonstrate progressive clinical illness are downgraded accordingly and may be discharged for physical disability.
Ok Tedi Mining will employ HIV positive persons with no symptoms, and only discontinues employment when AIDS develops, on the grounds of unfitness to work, as is the case with other diseases such as kidney failure, terminal cancer, unstable diabetes etc. Confidentiality is maintained and a policy of non-discrimination is pursued.
There is no right to education guaranteed by the Constitution, and in fact education is by no means universally available. The Education Department is currently working on policies regarding HIV infection in the school environment.
2.6 Civil Liability
This issue assumes special importance in the Papua New Guinea context. Cultural systems in general throughout the country prescribe the making of compensation, traditionally in kind and more latterly in the form of cash payments, for perceived injury or damage, traditional land usage, etc. Liability is assessed on a no-fault basis, and causal factors are determined far more widely than the common law system believes. Retribution, often in the form of violence, is exacted for non-payment of compensation to which a right is assumed.[22] Compensation demands are a part of daily life in Papua New Guinea, and HIV/AIDS has already become a head of damage. In a contact-tracing incident, a newly-wed husband is demanding compensation for infection from his wife's former partner, although the elements of proof required by the imported legal system are lacking.[23] Contact tracing by authorities has been largely abandoned because of this incident.
Compensation has also caused problems in relation to information dissemination. An AIDS sufferer involved himself in an extensive educational campaign, including the making of a video, before he died. The video cannot now be released for show as it is feared his relatives will demand compensation for his death.[24] It is a common belief throughout the country, and particularly in his area, that no deaths are caused by accident. There is always a causative party, who is obliged to pay compensation for a death.
3. Women's Issues
3.1 Vulnerability to HIV
Despite Constitutional guarantees of equality, the status of women in Papua New Guinea, as in many other developing countries, is depressed in many of the ways which increase vulnerability (e.g. fewer educational opportunities, higher illiteracy, less access to the cash economy).
Specifically, most women cannot require fidelity from their male partners. Customary polygamy is legal and still widely practised. Even where monogamy is the overt ideal, promiscuity is unsanctioned but widespread, and double standards between sexes are common. Women cannot usually compel condom use. Condoms are not always available, or affordable, in rural areas. Some churches oppose their use, or even promotion for safe sex. Finally, in the modern Papua New Guinea context, women's vulnerability is increased by the alarmingly high incidence of pack rape.
3.2 Status within Families and Societies
National Goal No. 1 (Integral Human Development) of the Constitution recognize the family as the basic social unit, and equality is guaranteed for all citizens by Section 55. Traditional societies are based on extended family or clan lines. Within the traditional social units, however defined in each culture group, women's status and roles are clearly defined, as different and separate from men's, but not necessarily inferior. Modern reality, however, differs markedly, with society tending towards the nuclear family and concomitant weakening of women's family status.
3.3 Economic Rights
Within traditional society, women played an important role in the subsistence economy as the principal food producers.
The Constitution in National Goal No. 2 calls for equal participation by women citizens in political, economic and developmental activities, but again, reality is different. Urbanization, the tendency to formation of nuclear family units and economic development strategies which are largely targeted towards men, have depressed women's economic status.
3.4 Role as Carers
Women are generally recognized as primary care-givers in society, both traditional and modern. In the Papua New Guinea cultural context, however, the obligation of care does not fall on the wife/mother alone, but also on other women as determined by each society's recognized kinship ties.
3.5 Strategies for Empowerment
In November 1992, the Department of Home Affairs and Youth launched a National Women's Policy, with Guiding Principles of Equality and Participation, Dignity and Respect for Women, appreciation of Melanesian Values while at the same time eliminating discriminatory practices, and promotion of Productive Action for women.[25] However, apart from a brief mention in one of the Goals, the Policy unfortunately does not address any issues of women and health.
4. Information Law
4.1 Rights to Information
The Constitution in Section 46 guarantees Freedom of Expression. It is defined to include freedom to hold and communicate opinions and information and specifically guarantees freedom of the press and mass media. Papua New Guinea does in fact have a strong free press. Set against this is a thriving legal trade in defamation suits.
The Right to Freedom of Information in Section 51 applies to the right of citizens to have reasonable access to official documents. It is qualified by inter alia the need for maintenance of personal privacy and security of the person.
The Right to practice, manifest and propagate Conscience, Thought and Religion (including traditional religious beliefs and customs) may be exercised provided it does not to interfere with the freedom of others to do likewise, and there no unsolicited intervention into another's religious affairs, or religious harassment (Section 45).
The dissemination of HIV/AIDS information is a priority of the NAC and the Health Department, and the area in which most action has been taken so far.
4.2 Obstacles to Information.
The major legal obstacle to information comes currently from the Censorship Board,[26] which has placed bans on information regarding condom use. Appeals to the Board have not yet been successful. This obstacle may be surmounted, however, by legal challenge on constitutional grounds or by HIV/AIDS-specific legislative action.
By Section 228 of the Criminal Code, it is an offence to publish etc. an item which is obscene or might otherwise tend to corrupt morals, unless it can be proved as a question of fact that it was for the public benefit.
A major non-legal obstacle is presented by the churches, most of whom have so far refused to associate themselves with the dissemination of epidemic-related information other than by the preaching of chastity and fidelity. Some of the minor religious movements are actively spreading totally inaccurate and inflammatory messages, and there is currently no legal mechanism by which this tendency can be arrested.
4.3 Sex Education
There is no law pertaining specifically to sex education. The Constitution provides that no person shall be compelled to receive religious instruction, but this does not apply to religious instruction of children with parental consent.[27] The Department of Education has already instituted a policy of including HIV/AIDS education in the school curricula at various levels. However, education in the formal school system is not universally available throughout the country.
5. Families and Carers
5.1 Inheritance
The Wills Probate and Administration Act (Chapter 291) gives any person the right to will property, and the will will be honoured by the law, subject to testator's family maintenance provisions. However, by Section 2, the Act does not apply to customary land (97% of the country's total land area), nor in practice does it apply to customary movables, entitlements etc.[28] Probate actions are currently few, but with the growth of urbanization and the holding of property by common law, this will steadily increase. Different societies regulate customary inheritance by a wide range of processes depending on kinship structure (see Introduction).
5.2 Marriage, Divorce and Separation
Family law in Papua New Guinea is in a very confused state, with imported and customary legal systems co-existing, and traditional constraints on the latter breaking down in the face of a changing social structure. Comprehensive reform has been impossible so far - even piecemeal improvement of the law has proved extremely difficult.
The National Goals of the Constitution recognize the family unit as the fundamental basis of society, and call for the promotion of the Melanesian family in every way.
Section 3 of the Marriage Act (Chapter 280) recognizes both statutory (registered) and customary marriages. Polygamy is legal where customary. Most, but not all, customs require payment of a brideprice. Confusion and conflict between legal regimes leads to many situations of voluntary and involuntary de facto relationships.
Statutory marriages are dissolved in accordance with the Matrimonial Causes Act (Chapter 282). Either party may petition on the old Anglo-Australian fault basis. It is a very expensive process and few nationals embark upon it. Customary marriages are left to be dissolved by customary procedure. Many societies have no such procedure, or are vague about the process, as the concept of marriage dissolution was largely alien to pre-modern societies.
The law's inability to reconcile conflict between the imported legal regime and custom, and between different customary regimes in situations of "mixed marriage", is notable.
5.3 Maintenance
This is governed by three different Acts.[29] Each confers jurisdiction on a different court, and requires differing preconditions (who is applying, on behalf of whom, was there a subsisting marriage, of what type) and different elements to be proved. Different types of awards may be made, and different means of enforcement are provided.[30] This confusion, coupled with the dynamics of modern Papua New Guinea society, means that many women and children, particularly in urban areas, do not receive financial support.
5.4 Custody and Adoption
Again, custody is governed by several different Acts,[31] with jurisdiction in a number of courts. Inadequate definition in some of the Acts can leave parents without a remedy or even a court in which to bring their cases.
The general customary law principle is that brideprice brings entitlement to children. This has been recognized, even in the National Court.[32] Traditionally, young children are highly valued and custody battles may be bitterly fought in a variety of fora. There is generally no lack of offerors for custody rights over a child.
Statutory and customary adoption processes co-exist, with the Adoption of Children Act (Chapter 275) providing a clearcut but drastic process, involving secrecy, permanency and exclusiveness, and customs containing a wide range of pre-conditions and degrees of exclusion and permanency, and little secrecy.
5.5 Career and Survivor Support
There is no national system of social security, nor is one likely to be established. The saving grace, after all this confusion, is the still-strong tradition of family group/village support for all members.
5.6 Non-consensual Sexual Intercourse
Forced sex, often with multiple perpetrators, is becoming increasingly common in Papua New Guinea. In the village setting, though, it is sometimes difficult to define the element of force when a young man is expected to "force" his attentions on a prospective marriage partner, and the girl is expected to submit to male demands on her sexual services.
In urban areas, though, where traditional social control mechanisms have been greatly weakened and economic and social depression are most prevalent, abduction and stranger-rape are common. It is a part of the ongoing street crime situation, which is steadily worsening.
Rape offences under the Criminal Code apply to females only,[33] and there is no rape in marriage.[34] An assault with intent to have anal intercourse carries a lesser penalty, and indecent assaults on males are considerably less serious again.[35] For laws on homosexual activity, see 8.4.
5.7 Termination of Pregnancy
By Sections 225 and 226 of the Criminal Code, all abortion is illegal. Although there is no Papua New Guinea case law directly on the matter, analogy may be drawn from Queensland decisions on the interaction between the equivalent of these sections and that of Section 280, surgical operations, which make lawful operations for the patient's benefit, or on an unborn child for the preservation of the mother's life. The Queensland cases have held that this section must be negatived by the prosecution in order to prove an unlawful abortion. In practice, this principle is applied in Papua New Guinea.
Traditional abortifacients, of varying types and degrees of success, are reported from many rural areas.
5.8 Age of Marriage and Sexual Consent
Under the Marriage Act Section 7, a male of 18 and a female of 16 years are of marriageable age (though in each case, application may be made by a person up to 2 years younger than the marriageable age for an order to permit marriage to someone of marriageable age). This limitation does not apply to customary, or non-statutory marriages.
Unlawful carnal knowledge of girls under 16, and indecent dealings with boys under 14 years, are crimes by Part IV Division 2 of the Criminal Code. Clear definition of age, in a country of scant written records, can pose problems for law enforcement officers.
6. Prisons, Custodial Institutions and Welfare Homes
No specific laws have been enacted in relation to HIV and prisoners, though group testing is under discussion and counselling planned.
Although detailed provisions are laid down by law regarding the operation of corrective institutions, prison discipline and management in Papua New Guinea is in reality by no means perfect.[36] This should be borne in mind when examining the details of statutory requirements laid out below.
6.1 Testing
The Corrective Institutions Act (Chapter 63) requires that a medical officer "examine" all prisoners upon admission to, and discharge or removal from prison;[37] where possible, once a month on a regular basis;[38] and where a prisoner "appears to require medical attention".[39] He may also examine warders where he thinks it necessary,[40] and both warders and detainees must submit to any medical treatment ordered.[41] Nominal medical records are kept on prisoners and warders.[42]
Compulsory testing of prisoners may contravene the constitutional Right to Privacy.
6.2 Segregation and Preventive Measures
There is a high incidence of homosexual activity, both consensual and forced, amongst male prisoners and possibly warders as well. Secret self-circumcision and other genital mutilation practices have sprung up among male prisoners as a sub-culture ritual. They use whatever cutting implements are available, usually shared rusty razor blades, and general infection often results.
A prison should have an infirmary for sick prisoners.[43] Ill prisoners may be removed to hospital, but must be returned to prison if their sentences are not expired.[44]
According to the Act, where a medical officer suspects a prisoner of having an infectious or quarantinable disease (not defined), he must inform the Commissioner and the Department of Health, and institute "all necessary measures" to ensure that other prisoners are not infected.[45] Additionally, the common law duty of care owed by those in authority to their charges means that all prison authorities are bound to ensure that prisoners are protected from danger of infection.
Segregation of prisoners may contravene the fundamental Right to Liberty (see 1.4). It may, however, be the only viable preventive measure available in a situation where behavioural change proves too slow, although in reality it may not be economically feasible (recent calls for the establishment of a maximum security prison are defeated on financial grounds).
The illegality of all homosexual activity (see 8.4) means that it is hard to distinguish between consensual and non-consensual sex, and victims of forced sex may be reluctant to complain, particularly in prison situations. It is also an impediment to condom distribution in prisons. Prison authorities could be held liable for condoning illegal acts.
6.3 Counselling, Care and Support
Visiting Justices (usually judges or magistrates) are required to inspect prisons regularly to hear complaints and make their own enquiries. They report to the Judicial and Legal Services Commission.[46] However, with some notable exceptions, the practice of prison visits has largely lapsed in recent years. Where visits are made, though, many irregularities in detention have been detected and taken up in court.
Chaplains may be appointed for prisons. A chaplain may only divulge matters coming to his knowledge on his visits to prison authorities, visiting justices and visiting medical officers.[47] The absolute privilege bestowed upon confessional communications by Section 19 of the Evidence Act will apply to prison chaplains.
Counselling may be provided by prison officials, and community organisations are usually allowed access to prisons for various purposes. These are usually religious in nature, but efforts are occasionally made to establish cottage industries etc.
6.4 Early Release
Prisoners undergoing life sentence are to be reviewed after 12 years by the Visiting Justice who reports to a Reviewing Committee, and at 15 years by the Reviewing Committee itself.[48] Where a life prisoner reaches 55 years of age, he is to be reviewed annually.[49] Health reasons constitute a ground for the Reviewing Committee to recommend to Cabinet that the life sentence be commuted.[50] In practice, though, the operations of the Reviewing Committee, like those of Visiting Justices, have largely lapsed.
A visiting medical officer must report to prison authorities any case of a prisoner whom he considers may not survive his detention, who is unfit for detention, or whose life may endangered by imprisonment.[51]
The Constitution in Sections 151 and 152 provides for Executive grant of pardons, remissions, commutations etc. of any sentence, on the advice of a special Advisory Committee on the Power of Mercy.
7. Employment Issues
7.1 Workplace Testing
The Defence Force has instituted compulsory testing for servicemen as part of the Annual Medical Board (see 1.3). In the private sector, Ok Tedi Mining requires testing for employment applicants only, as does the Department of Foreign Affairs for non-citizen work visa applications.
7.2 Policies on Infected Employees.
The Constitution in Section 48 guarantees to every person the Qualified Right to Freedom of choice of Employment, subject only to laws relating to the employment of non-citizens. This Right refers to choice, not practice, of employment.
All employment is deemed to be by contract unless otherwise regulated by statute, and basic employment is governed by the Employment Act (Chapter 373) which lays down minimum standards for the contract of employment. The Act may displaced by other legislation pertaining to employment (e.g. Employment of Non-Citizens Act, the Public Services (Management) Act, etc.) The Act is supervised by the Department of Labour and Employment, via Labour Offices and Inspectors. Employees in urban centres are quick to seek recourse to the protection thus offered.
Unless displaced by the terms of a contract or legislation, the Act provides that employment may be terminated according to the common law principle of the right to hire and fire in the employer, with a period of notice dependent on the method of salary payment.
No employment legislation has been enacted specifically for the protection of HIV infected employees.
In reality, paid employment is available to only a small section of the population, and unemployment is a major contributing factor to the depressed economy, offset only by reliance on subsistence economy survival in rural areas. Even if laws were to be put in place preventing dismissal on grounds of infection alone, it is likely that they will be circumvented, by the use of real or spurious threats to force resignation. In most situations, though, the ease of termination offered by the Employment Act and the principles of common law will suffice.
For Defence Force policy on infected servicemen see 2.5.
Ok Tedi Mining pursues a policy of confidentiality; no discrimination; no limitation on fitness to work unless HIV-related illness is present. An exclusion clause may be placed in the company-provided medical insurance plan, on the same basis as other medical conditions which do not impair fitness but show a high risk of a re-occurrence of a medical or surgical condition.
7.3 Sick Leave
The Employment Act prescribes minimum sick leave requirements for contracts of employment.
7.4 Disability Support
There is no social security system in Papua New Guinea, nor is there likely to be one. Concern here centres on persuading rural dwellers to integrate AIDS sufferers into the village community. There are reports that this has happened in some instances, but for other areas, discrimination and stigmatization have surfaced.
Both the Defence Force and Ok Tedi Mining will repatriate AIDS sufferers upon their becoming unfit for work.
Most employment contracts (including Public Service) do not appear to provide for the employee's right to terminate on disability grounds.
7.5 Occupational Health and Safety
The Department of Health has established Infection Control Guidelines for HIV/AIDS and other Blood-Borne Infections, for all its medical facilities.
The Ok Tedi Mining policy also stresses the need for first-aid precautions against blood-borne infections, including hepatitis-B and HIV/AIDS.
7.6 HIV Education in the Workplace
The Defence Force has instituted a rigorous system of HIV education and awareness amongst servicemen. Private enterprise is being encouraged to follow suit on a voluntary basis.
The Ok Tedi Mining policy stresses the need for information and education promotion in order to ensure protection from discrimination and prejudice.
8. Criminal Law
8.1 Transmission Offences
The Public Health Act provides for offences of marrying while suffering a venereal disease in an infectious stage (Section 64); knowingly infecting another
person; or knowingly doing or permitting the doing of any act which is likely to lead to any other person's infection (Section 66).
It is also an offence for the owner or occupier of premises to knowingly permit a female suffering a venereal disease to use the
premises for prostitution (in addition to any other legal liability for keeping a brothel etc.: Section 67).
The Criminal Code Part V. Division 1. codifies the common law range of offences against the person, ranging from murder to common assault. Some of these may be applicable to HIV/AIDS transmission, depending on the resolution of matters of causation, mens rea in the accused and implied consent in the victim. The year and a day rule applies to unlawful killing by Section 297, so that the greatest offence chargeable for a deliberate act intended to transmit infection would be attempted murder. The act of unlawfully and with intent to injure or annoy administering poison or other noxious thing to a person, which may possibly be extended to cover situations of malicious acts intended to transmit infection, is found under the offence of wounding in Section 322.
In the light of a recent report of a pack rape in a rural area allegedly carried out with the expressed intention of transmitting HIV infection,[52] the matter of transmission offences has assumed high importance in Papua New Guinea.
8.2 Drug Use
Legislative controls are in place for the monitoring and control of illegal drugs, in the face of widespread marijuana cultivation, trade and use. There is no evidence so far of intravenous drug use in Papua New Guinea.
8.3 Sex Workers
Although prostitution per se is not an offence, it is against the law to live off the earnings of prostitution, or to keep a brothel,[53] or to procure.[54] The National Court has construed the Summary Offences Act so as to apply the offence of living on the earnings of prostitution[55] to the prostitute herself[56]. However, this interpretation was not applied in a subsequent case of receiving money for an isolated prostitution association, which was held not to constitute living, even partly, off earnings.[57]
Both male and female prostitution are now common in towns, and female prostitution in rural areas also. However, it is often difficult to define prostitution clearly, along a continuum from casual sex given for favours to clear-cut commercial sale of sexual favours. Urban sex workers are not usually organised into brothel situations, but rather, free-lance around bars and discos. Organisation is more prevalent in rural areas, for example in the village drinking clubs established along the major highway artery to and through the Highland region, and along the shores of the coasts and major rivers. Some villages in various regions of the country are renowned for the fact that the entire adult female population is available for sex work.
8.4 Homosexuality
Ritualized homosexuality occurs in a few societies in Papua New Guinea. More widespread, though, is homosexual activity as a transitional phase in the development of the individual. Thus it can be said that bisexuality, rather than exclusive homosexuality, is the norm.
The Criminal Code in Part IV. Division 2. retains its original terms of outlawing all homosexual activity by making crimes of all "carnal knowledge against the order of nature" (anal intercourse), and "acts of gross indecency" between males. Although actual prosecutions are not common, the illegality situation gives rise to practices of blackmail and discrimination e.g. threats of exposure and prosecution are used to force resignations in the workplace.
The Code provisions may well conflict with the constitutional Right to Privacy in Section 49, the Right to Equality of citizens in Section 55 (which includes equality regardless of sex, although not specifically sexual preference), and for those whose traditional cultures include ritualized homosexual practices (and there are several in the country) they may constitute an infringement of Freedom of Religion in Section 45.
8.5 Illegal Treatment and Advertising.
Only a medical practitioner, or a person acting under his direct instructions, may prescribe for and treat a venereal disease.[58]
The Public Health Act in Section 140 contains a general offence of the publishing statements promoting the sale of any medicine, instrument or appliance for the alleviation or cure of venereal diseases, complaints or infirmities arising from or relating to sexual intercourse, diseases affecting generative functions etc. (this does not apply to publications in relation to medical research, and publications sent to medical practitioners or pharmacists for the purposes of their businesses, or advertisements etc. approved by the Commissioner for Venereal Diseases). This provision is not confined to defined venereal diseases alone, and could therefore apply to the advertising of false cures for HIV/AIDS.
There is currently no offence of publishing false information relating to such matters (see 4.2).
9. The Legal Process
9.1 Legal Aid and Access to the Law
Section 37 of the Constitution guarantees to all persons the fundamental Right to Protection of the Law. No person may be charged with an offence that is not defined by a written law. Determination of civil rights and obligations must be made by a court or similar impartial authority, within a reasonable time.
In many situations, persons may obtain free legal representation from the Public Solicitor. However, the office is under-resourced and its first priority is criminal defence. Even this is only available at National and Supreme Court level.
The Public Solicitor and the Law Society administer a means-tested legal aid scheme for situations where the Public Solicitor is unable to act.
Where violations of Constitutional Rights are concerned, the National Court will act of its own initiative to protect them.[59] The Court has instituted simple procedures whereby rights violations may be brought speedily before the court.
9.2 Evidence
The Evidence Act Section 19 prohibits a medical practitioner (which has been held to include all persons) from divulging in any civil proceedings any communication made to him by a patient unless the patient consents. The privilege has also been held to attach to any information given to persons specifically or impliedly delegated by the practitioner to obtain information from the patient for the purpose of medical treatment.[60] On its wording, this protection may not extend to medical information the practitioner has about the patient.
Spouses are not compellable to disclose communications during the marriage in any legal proceedings except divorce and matrimonial causes proceedings.[61]
9.3 Courtroom Procedure
Under the Constitution, all court proceedings shall be held in public unless the parties agree otherwise. A court may be closed where it is empowered to do so by law in the interests of, inter alia, the protection of the private lives of persons concerned in the proceedings.[62] Under the District Courts Act (Chapter 40) which was enacted prior to the Constitution, a court may be closed in "the interests of public morality".[63]
The Judicial Proceedings (Regulation of Reports) Act (Chapter 51) prohibits the publishing of any "indecent medical, surgical or physiological details the publication of which would be calculated to injure public morals".[64] However, this does not apply to the communication of the content of pleadings, transcripts of evidence or similar documents to "a person concerned in the proceedings".[65]
9.4 Sentencing
Judges take many factors into account in sentencing, including age, medical infirmity and likelihood of surviving a prison sentence. As no case involving a person known to be HIV-positive has yet come before the courts, no specific sentencing policy has evolved in respect of any crime. However, guidance may be drawn from the 1989 case of The State v. Thomas Pipon[66], where a young first offender pleading guilty was nevertheless given the exceptionally severe sentence of 7 years IHL for defilement (maximum penalty life) of an 18 month old girl whom he infected with gonorrhoea. His Honour Brunton J. (as he then was) noted in sentencing that knowing infliction of AIDS on a victim of sexual assault would constitute an aggravating factor of more extreme seriousness than infection with gonorrhoea, a curable disease.[67]
[1] See District Courts Act (Chapter 40).
[2] See Local Courts Act (Chapter 41). The Local Courts are presided over by lower-grade Magistrates.
[3] See Village Courts Act 1989, Sections 57, 58 and 59.
[4] in the Preamble.
[5] Part III Division 3, commencing at Section 32.
[6] Section 38.
[9] NEC Decision No. NG 24/88.
[10] "The PNGDF AIDS Prevention Programme", Undated paper by Acting Commander Col. Aria.
[11] "Company Policy Regarding HIV Persons", Undated Paper by Mr. J. Bola, Ok Tedi Mine.
[13] See Medical Registration Act (Chapter 398).
[15] "The PNGDF AIDS Prevention Programme", op cit.
[16] Ok Tedi "Company Policy Regarding HIV Persons", op cit.
[17] Section 56(3).
[18] S.C.R. No.2 of 1984; Re Medical Privilege [1985] PNGLR 247.
[19] Section 53.
[20] Section 54.
[21] Code of Ethics of the Medical Society, 2.2 and 2.8.
[23] Personal information from the Department of Health.
[24] Personal communication from Department of Health.
[26] Established by the Classification of Publication (Censorship) Act No.18 of 1989.
[27] Section 45(2).
[31] The Matrimonial Causes Act, the Infants Act (Chapter 278), and the Village Courts Act.
[32] e.g. the Janet Wan Case, Unreported decision N882, July 1990.
[33]Part V. Division 7, which is entitled "Assaults on Females: Abduction."
[34] Section 347.
[35] Sections 336, 337.
[37] Regulations Section 27.
[38] Regulation Section 26.
[39] Regulation Section 119.
[40] Regulation Section 26.
[41] Regulation Section 28.
[42] Regulation Section 29.
[43] Regulation Section 120.
[44] Act Section 22.
[45] Regulation Section 32.
[47] Regulations Part V.
[48] Regulation Sections 144, 145.
[49] Regulation Section 145(3).
[50] Regulation Section 145(4).
[51] Regulation Section 31.
[52] Weekly Newspaper "The Times of Papua New Guinea", No.683 4.2.93, p.1-2.
[53] Summary Offences Act (Chapter 264) Part VII.
[54] Criminal Code Section 218.
[55] Summary Offences Act Section 55(1).
[56] Anna Wemay and Others v. Kepas Tumdual [1978] PNGLR 173.
[57] Monika Jon v. Dominik Kuman, Unreported Judgement N253 of 8 August 1980.
[58] Public Health Act Section 55.
[59] Constitution Section 57.
[60] Medical Privilege Case, op. cit.
[61] Evidence Act Section 18.
[62] Section 37, Subsections (12) and (13).
[63] Section 57.
[64] Section 2(a).
[65] Section 3(a).
[67] At pp. 186-7.
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