Sir Michael Somare v Theo Zurenuoc

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 30 May 2016
• Citation: (2016) N6308
• Court: National Court
• Year: 2016
• Judgement Number: N6308

Full : OS (HR) N0 5 of 2014; Grand Chief Sir Michael T Somare MP, Governor of East Sepik and DR Andrew Moutu, Director, National Museum & Art Gallery v The Honourable Theo Zurenuoc MP, Speaker of the National Parliament and Chairman, Parliamentary House Committee and L &A Construction Limited and the Independent State of Papua New Guinea (2016) N6308

National Court: Cannings J

Judgment Delivered: 30 May 2016

N6308

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (HR) NO. 5 OF 2014

GRAND CHIEF SIR MICHAEL T SOMARE MP,

GOVERNOR OF EAST SEPIK

First Plaintiff

DR ANDREW MOUTU, DIRECTOR,

NATIONAL MUSEUM & ART GALLERY

Second Plaintiff

V

THE HONOURABLE THEO ZURENUOC MP,

SPEAKER OF THE NATIONAL PARLIAMENT

First Defendant

CHAIRMAN, PARLIAMENTARY HOUSE COMMITTEE

Second Defendant

L &A CONSTRUCTION LIMITED

Third Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

Waigani: Cannings J

2015: 23 March, 1 May

2016: 30 May

HUMAN RIGHTS – freedom of conscience, thought and religion, Constitution, Section 45 – “religion” includes traditional religious beliefs and customs of peoples of Papua New Guinea –freedom to manifest and propagate traditional customs – prohibition against attempting to force religion on another.

PROPERTY – cultural property – National Cultural Property (Preservation) Act Chapter No 156 – prohibition against destruction, damaging or defacing “national cultural property” – whether an object or other item of property must be declared, proclaimed or gazetted to attract protection under the National Cultural Property (Preservation) Act.

COPYRIGHT – economic and moral rights of “authors” of works of sculpture and other works of fine art – Copyright and Neighbouring Rights Act 2000.

REMEDIES – declarations and injunctions – standing – whether the plaintiffs have sufficient standing to seek relief – Constitution, Sections 57(3), 155(4).

In November-December 2013 a number of objects of cultural decoration at Parliament House were damaged, dismantled and/or removed on the authority of the Speaker of the National Parliament. The plaintiffs, a provincial governor and the Director of the National Museum and Art Gallery, commenced proceedings by originating summons, principally seeking injunctions that the Speaker be (a) restrained from further damaging, dismantling and removing those or similar cultural objects, and (b) required to repair, return or replace those cultural objects that had been damaged, dismantled and/or removed. The plaintiffs sought those orders on three grounds: first, that damage, dismantling and removal of those cultural objects was a violation of the right to freedom of conscience, thought and religion, including the traditional religious beliefs and customs of the peoples of Papua New Guinea, guaranteed by Section 45 of the Constitution; secondly, that the cultural objects were objects of “national cultural property”, the damage, dismantling and removal of which was prohibited by the National Cultural Property (Preservation) Act Chapter No 156;thirdly, the objects were protected works (being artistic works of original intellectual creation in the artistic domain) under the Copyright and Neighbouring Rights Act 2000, that had been unlawfully transformed and mutilated contrary to the economic and moral rights of the authors of those works. The defendants argued that all relief sought by the plaintiffs should be refused as the plaintiffs lacked standing, there was no evidence that anyone’s religious rights or freedoms had been infringed, the cultural objects were not “national cultural property” and there was no breach of copyright. Five issues arose: (1) Do the plaintiffs have standing to commence the proceedings? (2) Has there been any breach of the right to freedom of conscience, thought and religion under Section 45 of the Constitution? (3) Has there been any breach of the National Cultural Property (Preservation) Act? (4) Has there been any breach of the Copyright and Neighbouring Rights Act? (5) What orders should the Court make?

Held:

(1) Both plaintiffs have a genuine and legally sufficient interest in the subject matter of the proceedings; the first plaintiff by virtue of being, amongst other things, Chief Minister for two years prior to Independence, Chairman of the Constitutional Planning Committee, the country’s first Prime Minister and a member of the Parliament since Independence; the second plaintiff by virtue of being head of a governmental body the statutory functions of which include protecting and conserving the cultural heritage of Papua New Guinea and administration of the National Cultural Property (Preservation) Act. Both plaintiffs therefore have standing to commence and prosecute these proceedings.

(2) Under Section 45(1) of the Constitution every person has “the right to freedom of conscience, thought and religion and the practice of his religion and beliefs”. “Religion” includes, under Section 45(5), “a reference to the traditional religious beliefs and customs of the peoples of Papua New Guinea”. Here, the nature and form of the objects of cultural decoration were a manifestation and propagation of traditional Papua New Guinean customs by local artisans and artists who had been invited to exercise their Section 45 rights. The Speaker’s actions, taken without consultation with those persons or their descendants or with all the members of the Parliament, constituted an unsolicited intervention into the religious affairs of those persons, being persons of a different belief to his, and were unlawful under Section 45(3) of the Constitution. Section 45 of the Constitution was breached.

(3) “National cultural property”, for the purposes of the National Cultural Property (Preservation) Act, means “any property, movable or immovable, of particular importance to the cultural heritage of the country”. To be regarded as “national cultural property” it is not necessary that an item of property be declared or proclaimed under the Act. Here, the evidence before the Court supported a finding that the objects of cultural decoration were objects of “national cultural property”. It was an offence to wilfully destroy, damage or deface the objects without lawful and reasonable excuse. No such excuse existed in this case. The damage, dismantling and removal that took place were unlawful. The National Cultural Property (Preservation) Act was breached.

(4) The objects of cultural decoration were protected works (being artistic works of original intellectual creation in the artistic domain) under the Copyright and Neighbouring Rights Act. Copyright in those works vested in their “authors” (the persons who created them), which gave them economic and moral rights, including the exclusive right to authorise “transformation” of the works (s 6(1)(c)) and the right to object to any “mutilation” of their works (s 7(1)(d)). None of those rights had been afforded to the creators of the objects of cultural decoration the subject of these proceedings.

(5) The Court, pursuant to Sections 57(3) and 155(4) of the Constitution: (a) declared that the damage, dismantling and removal of the objects of cultural decoration at the National Parliament, the subject of these proceedings, infringed Section 45 of the Constitution and were unlawful acts; (b) declared that the damage, dismantling and removal of the objects of cultural decoration breached Section 9 of the National Cultural Property (Preservation) Act and were unlawful acts; (c) declared that the transformation and mutilation of the objects of cultural decoration were unlawful under the Copyright and Neighbouring Rights Act; (d) ordered that the first, second and third defendants and all other persons are restrained forthwith from further damaging, dismantling and removing those or similar cultural objects; (e) ordered that the first and second defendants are required, within six months after the date of judgment, at the cost of the National Parliament, and in consultation with the persons who created, curated and installed the objects of cultural decoration and with the plaintiffs, to repair, return or replace those cultural objects that have been damaged, dismantled and/or removed; (f) ordered that the first, second and third defendants and all other persons are permanently restrained from further damaging, dismantling and/or removing the objects of cultural decoration at the National Parliament, the subject of these proceedings, or similar cultural objects, unless the question of damage, dismantling and removal of such objects is decided by the Parliament, at a meeting of the Parliament, in accordance with Section 114 of the Constitution; (g) ordered the first and second defendants to pay the plaintiffs’ costs of the proceedings and other parties to bear their own costs.

Cases cited:

The following cases are cited in the judgment:

Application by Ila Geno (2014) SC1313

Belden Norman Namah MP v Rimbink Pato MP, National Executive Council & The State (2014) SC1304

Grand Chief Sir Michael Somare MP v Theo...