Honk Kiap and Others v Chairman of Board of Governors of Kerevat National High School, Minister for Education and The State (1995) N1381

• Jurisdiction: Papua New Guinea
• Judge: Injia J
• Judgment Date: 29 September 1995
• Court: National Court
• Citation: (1995) N1381
• Docket Number: In the Matter of s155 of the Constitution
• Year: 1995
• Judgement Number: N1381

Full Title: In the Matter of s155 of the Constitution; Honk Kiap and Others v Chairman of Board of Governors of Kerevat National High School, Minister for Education and The State (1995) N1381

National Court: Injia J

Judgment Delivered: 29 September 1995

N1381

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 35 OF 1995

BETWEEN

IN THE MATTER OF SECTION 155 OF THE CONSTITUTION AND IN THE MATTER OF AN APPLICATION BY HONK KIAP & OTHERS — PLAINTIFF

AND

CHAIRMAN OF BOARD OF GOVERNORS — KEREVAT NATIONAL HIGH SCHOOL — FIRST DEFENDANT

AND

MINISTER FOR EDUCATION — SECOND DEFENDANT

AND

THE STATE — THIRD DEFENDANT

Mount Hagen

Injia J

29 September 1995

JUDICIAL REVIEW — Review of disciplinary proceeding of Kerevat National High School Governing Council resulting in expulsion of Highlands students following fight between Highlands students and Coastal (Manus) students — Grounds of review — Discrimination against Highlands students and breach of principles of natural justice — Constitution, s 55, 59, 155 (4).

Held

(1) There was insufficient evidence to establish a prima facie case of discriminatory policies or practices based on ethnic origin of students.

Regina Kembol v Paul Nepau & Another N122 [1994] distinguished.

(2) The expelled students were fairly dealt with by the School's Governing Council and the National Education Board Appeal Committee in accordance with the principles of natural justice and their decisions should not be disturbed.

CONSTITUTION — Constitutional Right — Right of students at State-run National High School to receive an education — Highlands students voluntarily withdrew classes because of trouble but refused re-enrollment because of, inter alia, their behaviour during the trouble.

Held

Students already attending State-run National High School cannot be deprived of their right to continue school without the School's Governing Council following school rules relating to re-enrollment, discipline, etc, which should be designed to observe the principles of natural justice — Constitution, ss. 57, 59, 155 (4).

Cases Cited

Regina Kembol v Paul Nepau & Another N1222 (1994)

Counsel

P Dowa for the Plaintiffs

A Kawi for the Defendants

DECISION

29 September 1995

INJIA J: The plaintiffs are former students from the Highlands who were attending Kerevat National High School in 1993. They seek declaratory orders that the termination and suspension notices issued by the first defendant in July 1993 be declared null and void, that the plaintiffs be immediately reinstated and that they be repatriated to the school within 7 days of the order at the defendant's expense.

This action arises out of a trouble between Coastal students and Highlands students at Kerevat National High School in 1993. Coastal students (Manus students) clashed with Highlands students which resulted in classes at the school being disrupted and some school buildings being set ablaze. Consequently, some students were dealt by way of disciplinary proceedings by the school's governing board and others being referred to the police for prosecution. Of those students dealt with disciplinarily, some 10 students were expelled and some students reprimanded. Some students withdrew classes voluntarily.

This application is made by Highlands students. On 24 March, claims in respect of 33 students were compromised and a consent order was made for them to be re-enrolled in 1995 or 1996 depending on availability of space at Kerevat or any other State-run National High School. These plaintiffs are:

1.Albert Alo12.Timothy Lanton23.Benny Moses2.Wendy Andrew13. Paulus Pank24.Kefi Ofi3.Meck A. Waya14.Kennedy Paul25.Nickson Tiri4.Simon Dinongo15.David Pip Iswe26.Anthony Ignatus5.Tom Dom16.Killo Rasaka27.Utia Blehe6.Evazo Fomio Yare17.Levi Robin28.Docas Evana7.Keven Franis Nami18.Kim Sakul29.Petronia Kaima8.Daniel Kale19.Mark Senis30.Pendine Lui9.Phillip Kapari20.Peter Sol31.Janet Nol Gagul10.Ben Kona21.Julius Tokale32.Magdalene Popna11.Kop Korowa22.Riben Yama Inua33.Florence SibaAlso on 24 March 1995, the Court ordered by consent, that the cases of the following students proceed to trial.

A. STUDENTS REFUSED RE-ENROLMENT

GRADE 12

1.Paulus Ain9.James Alfred Pepa2.Gibson Bade10.James Pilya3.Kelly Gene11.Joseph Subam4.Peter Kaupa12.Emmanuel Vitus5.Noriah Kiaa13.Kohai Wak6.Justin Konda14.Wesley Yosia7.David Mondo15.Nicholas Lep Lepi8.Kepakan Paulan Naupo16.Wak KowalGRADE 11

17.Martin Asel18.Lano NickodemusB. EXPELLED STUDENTS

NameGrade1.James Aruru122.Simon Bol123.Honk Kiap124.Gerald Monale125.Luke Avusi126.Simon Kunamen127.Pako Teka128.Wapa Irinaya129.Dennis Pocitu1210.Yoanes Tongunas11I will deal with the above two category of students separately.

1. EXPELLED STUDENTS

One of the main grounds for review by the court as per Mr Dowa's written submission is that the expulsions or refusal to re-entrol were discriminatory as against Highlands students only and in breach of S. 55 of the Constitution and therefore unlawful. He submits the Coastal students were given lenient punishment or not even charged with any disciplinary offences whereas the Highlands students were severely dealt wth.

Allegations of discrimination in a State-run educational institution is a serious allegation which must be proved by the plaintiff with sufficient evidence. Once a prima facie case is established by the plaintiff, the onus is then on the school's governing board or the State to negative the presumption. In the instant case, it appears from the evidence that each individual student was dealt with separately by the school's governing council and it was only fair and just that each student affected was dealt with in this manner. The education rights of individual students were affected and principles of natural justice demanded that each individual case be considered separately. The record is that 33 Highlands students who withdrew classes were allowed to re-enrol on their own merits whilst refusing re-enrolment to another...