Abaina Emos, Elizabeth Kombo, Angela Pomat, Silon Gabus, Sharleen Treppe, Amalyn Mavi, Brendon Mohe, Driscoll Ragat, Derek Towellie, Timerlyne Tunamo, Shekinah Kopi, Joe Nuli, Lisa Wulying, Cornelius Jebelei, Rollen Salangau, Raymond Mangaea, Andrew Andape, Miriam Lapim & Eltie Miroi v Dr Sebastian Bagrie, Chairman, Governing Council, Madang Teachers College and Mr Mathias Sully, Principal, Madang Teachers College and Madang Teachers College (2020) N8166

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 06 January 2020
• Court: National Court
• Citation: (2020) N8166
• Docket Number: HRA NOS 343-352 & 366-374 of 2019
• Year: 2020
• Judgement Number: N8166

Full Title: HRA NOS 343-352 & 366-374 of 2019; Abaina Emos, Elizabeth Kombo, Angela Pomat, Silon Gabus, Sharleen Treppe, Amalyn Mavi, Brendon Mohe, Driscoll Ragat, Derek Towellie, Timerlyne Tunamo, Shekinah Kopi, Joe Nuli, Lisa Wulying, Cornelius Jebelei, Rollen Salangau, Raymond Mangaea, Andrew Andape, Miriam Lapim & Eltie Miroi v Dr Sebastian Bagrie, Chairman, Governing Council, Madang Teachers College and Mr Mathias Sully, Principal, Madang Teachers College and Madang Teachers College (2020) N8166

National Court: Cannings J

Judgment Delivered: 6 January 2020

N8166

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

HRA NOS 343-352 & 366-374 OF 2019

ABAINA EMOS, ELIZABETH KOMBO, ANGELA POMAT,

SILON GABUS, SHARLEEN TREPPE, AMALYN MAVI,

BRENDON MOHE, DRISCOLL RAGAT, DEREK TOWELLIE,

TIMERLYNE TUNAMO, SHEKINAH KOPI, JOE NULI,

LISA WULYING, CORNELIUS JEBELEI, ROLLEN SALANGAU,

RAYMOND MANGAEA, ANDREW ANDAPE, MIRIAM LAPIM

& ELTIE MIROI

Plaintiffs

V

DR SEBASTIAN BAGRIE, CHAIRMAN, GOVERNING COUNCIL, MADANG TEACHERS COLLEGE

First Defendant

MR MATHIAS SULLY, PRINCIPAL,

MADANG TEACHERS COLLEGE

Second Defendant

MADANG TEACHERS COLLEGE

Third Defendant

Madang: Cannings J

2019: 23 November, 2, 10 December

2020: 3, 6 January

HUMAN RIGHTS – disciplinary proceedings re college students – right to full protection of the law, Constitution, Section 37 – proscribed acts, Constitution, Section 41 – principles of natural justice, Constitution, Section 59 – whether students alleged to have committed disciplinary offences afforded full protection of law, dealt with fairly, dealt with harshly or oppressively.

The 19 plaintiffs were teachers college students. In the week prior to commencement of final examinations for the year,they were given notice of their termination or suspension from studies on various disciplinary grounds (eg involvement in alcohol-related incident while on practical teaching assignment, entering dormitory of opposite sex, being pregnant). The day after being notified of the action taken against them, they instituted proceedings in the National Court by applications for enforcement of human rights. The chairman of the governing council, the college principal and the college were named as defendants. The Court granted interim injunctions that stayed implementation of the decisions regarding the plaintiffs and allowed them to sit their final examinations. They sat their examinations and 13 of them (who were final year students) were permitted to graduate. A joint trial of the 19 human rights enforcement applications was conducted. The plaintiffs claimed that their human rights were breached in various ways: denial of full protection of the law under s 37(1) of the Constitution, dealt with harshly and oppressively contrary to s 41(1) of the Constitution and denial of natural justice contrary to s 59 of the Constitution, and sought declarations to that effect, damages and other remedies. The defendants denied all allegations of breaches of human rights and argued that the plaintiffs had been dealt with fairly in accordance with the student code of conduct.

Held:

(1) The defendants failed to adhere to the principles of natural justice enshrined in s 59 of the Constitution in their dealing with the plaintiffs in that: (a) the plaintiffs were not given any charges; (b) there was no proper disciplinary hearing; (c) the plaintiffs were not given copies of witness statements or investigation reports; (d) they were not given the opportunity to present witnesses; (e) the two plaintiffs punished for being pregnant, were not given any opportunity to say why they should not be suspended; (f) the notices of termination or suspension did not cross-refer to any particular rule or provision of the Code of Conduct; (g) the right of appeal, was illusory.

(2) Furthermore, the defendants failed to afford the plaintiffs the full protection of the law under Section 37(1) of the Constitution and, by notifying the plaintiffs that they were terminated or suspended from studies less than a week before final examinations were due to commence, dealt with them in a manner that was harsh and oppressive and not warranted by the particular circumstances of their particular cases contrary to Section 41(1) of the Constitution.

(3) Declared: that the defendants’ decisions to find the plaintiffs guilty of disciplinary offences and terminate or suspend the plaintiffs’ studies, were unlawful acts for the purposes of Section 41(1) of the Constitution and null and void.

(4) Ordered: that the plaintiffs who did not graduate be reinstated to studies, that the plaintiffs who had graduated be issued with certificates and awards as if they had not been subject to disciplinary proceedings, and that the plaintiffs be awarded damages of K1,000.00 each, and costs of K1,000.00 each.

Cases cited

The following cases are cited in the judgment:

Jacob Sanga Kumbu v Dr Nicholas Mann (2012) N4746

Yareng v Kiong &PNG Maritime College (2019) N8152

Wilson v Kekeya & Divine Word University (2018) N7613

APPLICATIONS

These were applications for enforcement of human rights.

Counsel

B B Wak, for the Plaintiffs

W Akuani, for the Defendants

6th January, 2020

1. CANNINGS J: The 19 plaintiffs were students at Madang Teachers College. On Tuesday 22 October 2019, with their final examinations due to commence the following week, they were given notice of their termination or suspension from studies on various disciplinary grounds (eg involvement in alcohol-related incident while on practical teaching assignment, entering dormitory of opposite sex, being pregnant).

2. The next day they instituted proceedings in the National Court by applying for enforcement of their human rights. The Chairman of the Governing Council, Dr Bagrie, the Principal, Mr Sully, and the College were named as defendants. On 23 October 2019 the Court granted interim injunctions that stayed implementation of the decisions regarding the plaintiffs and allowed them to sit their final examinations. They sat their examinations and 13 of them (who were final year students) were, on 29 November 2019, permitted to graduate. A joint trial of the 19 human rights enforcement applications has been conducted.

3. The plaintiffs claim that their human rights were breached in various ways in that they were denied the full protection of the law under s 37(1) of the Constitution, dealt with harshly and oppressively contrary to s 41(1) of the Constitution and denied natural justice contrary to s 59 of the Constitution. They seek declarations to that effect, damages and other remedies. The defendants deny all allegations of breaches of human rights and argue that the plaintiffs were dealt with fairly in accordance with the student code of conduct.

ISSUES

4. The following issues arise:

(1) What allegations did the plaintiffs face and how were they dealt with?

(2) Was there any breach of the plaintiffs’ human rights?

(3) What orders should the court make?

1 WHAT ALLEGATIONS DID THE PLAINTIFFS FACE AND HOW WERE THEY DEALT WITH?

5. Eight plaintiffs were punished for their involvement in a social outing that took place when they were engaged in a practical teacher education program at Tabele Primary School, Bogia District, in August 2019. They were allegedly with the Head Teacher, drinking alcohol and fraternising with PNG Defence Force members on an unauthorised trip to another village, and one of the group of eight, Derek Towellie,had an argument with local villagers that resulted in him being detained overnight at the Bogia Police Lock-up.

6. Three plaintiffs were punished for their involvement in an alcohol-related incident on 29 August 2019 at Gusap Primary School, Usino Bundi District,where they had been posted for practical teacher education.

7. Six plaintiffs were punished for on-campus breaches of discipline involving male students entering the girls’dormitory and various other standalone incidents.

8. Two plaintiffs were punished for becoming pregnant while undertaking studies.

9. It is difficult to say when each of the incidents actually occurred as none of the allegations were put in writing and no formal disciplinary charges were laid.

10. The only records of the disciplinary proceedings are in the minutes of two Discipline Committee meetings, which led to written recommendations for disciplinary action to be taken against the plaintiffs (except for the two plaintiffs punished for being pregnant) being forwarded to the Governing Council, which met and decided on the Discipline Committee’s recommendations; and the disciplinary notices issued to each of the plaintiffs on 22 October 2019.

11. On the basis of that limited written evidence, annexed in affidavits by the Principal, Mr Sully, combined with the evidence of each of the plaintiffs, I have in table 1 summarised the disciplinary action taken against each of the 19 plaintiffs.

DISCIPLINARY ACTION RE EACH PLAINTIFF

No ...