N993

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

GINI FOR AND ON BEHALF OF THE STUDENTS

V

UNIVERSITY OF TECHNOLOGY AND PEARCE AND PAPUA NEW GUINEA UNIVERSITY OF TECHNOLOGY 
AND INDEPENDENT STATE OF PAPUA NEW GUINEA

Lae
Doherty J

13 July 1991

EDUCATION - University of Technology - Disciplinary procedures - Powers of Vice-Chancellor - Power to act in "emergency" - Powers restricted to those contained in statute - No power to restrict rights - No power to vest powers of search - University of Technology Act 1986 (Ch No 170), s 29(c).

STATUTES - Interpretation and construction - Power to act in "emergency" - University - Powers of Vice-Chancellor - Powers restricted to those contained in statute - No power to restrict rights - No power to vest powers of search - University of Technology Act 1986 (Ch No 170), s 29(c).

Under the University of Technology Act 1986, s 29, the Vice-Chancellor of the University has power to act in an "emergency". A student disciplinary statute made pursuant to the Act empowers the Vice-Chancellor to impose conditions as to attendance at or enjoyment of the privileges of, the University.

Held

For the purposes of s 29 of the University of Technology Act, an "emergency" is "an unexpected and dangerous situation requiring immediate action", in respect of which the Vice-Chancellor could exercise the powers contained in the Act in the manner prescribed by the Act and in student disciplinary statutes made thereunder.

The Vice-Chancellor did not have power to declare a "state of emergency" of the type vested in the Head of State to restrict rights and vest powers of search.

Cases Cited

Re Amand (No 2) [1942] 1 All ER 236.

Statement of claim

These were proceedings in which 13 students from the University of Technology sought, inter alia, declarations as to the validity of a state of emergency declared by the Vice-Chancellor of the University.

Counsel:

K Gamoga, for the plaintiffs.
M Shephard, for the defendant.

13 July 1991

DOHERTY J: This is a suit brought by 13 students of the University of Technology against the incumbent Vice-Chancellor and the University. The Independent State of Papua New Guinea was joined as a third defendant but there is no affidavit of service on the file indicating that they have been served nor has been any evidence been adduced against them. I say nothing further on the third defendant.

The University is a body corporate set up under its own Act (Papua New Guinea University of Technology Act 1986 (Ch No 170)) and its power are defined in s 6 of that Act. These include conferring degrees (s 6(a)); providing instruction, etc, (s 6(b)); regulating and enforcing discipline among the employees and students of the University by such measures as the University may determine (s 6(g)).

The University consists of the Council which is a governing body and other authorities (s 8). Certain functions of the Council may be delegated to its members, a committee or an officer of the University (s 24).

The Vice-Chancellor is appointed under s 26. He has certain powers and functions which are set out in s 29.

According to evidence before me at the time of the events leading up to these proceedings there were about 1,300 students at the University of Technology. This case commenced on behalf of 360 of those students. Matters relating to 340 were settled by consent. The remaining 20 were reduced to 13. The 13 authorised the plaintiff Stanley Gini to act for them. The authorisation shows that the 13 are:

Amos Ami, Phillip Depas, David Kepak, Bal Dulume, Wilson Pesh, Eric Kuman, Brett Konga, Gabriel Michael, Ned Lyaki, Isaac Yankie, McQuienie Waia, Adres Yati Naganing, and Stanley Gini.

They said their situation is different from the other 1,287, approximately, students at University of Technology because they were banned from the campus by the first defendant and seek a declaration that the decision was null and void and that it be quashed.

The first defendant made the banning order when he declared "A State of Emergency" which he says he had power to do under s 29(c) of the University of Technology Act 1986.

I have referred to the disciplinary powers of s 6 of the Act and provisions have been made for a discipline statute made by Council under the Act. This is printed and, according to evidence, handed to the students when they come to the University in booklet form called "Student Rules".

The plaintiff acknowledges receipt of it but I found it rather amazing that some of them did not even read it. There is a Preamble to the Act. It says:

"Criminal activities such as stealing, assaults, being under the influence of liquor, provoking group fights or not, rape, wilful destruction of State or personal property and inflicting personal injuries on others, adultery, drug abuse and such other activities defined by the laws of our country to be of criminal nature are punishable by jail sentences. Such offences will be reported to the police and the offenders be handed over to the police to be dealt with under the Criminal Code of Papua New Guinea."

Section 1(2) of the Students Discipline Statute states what are considered to be breaches of discipline. They include an offence punishable in a court of law and disorderly or improper conduct detrimental to the interests of the University and its good repute.

The defendants allege that certain criminal activities were carried on by, inter alia, the plaintiffs but evidence adduced in court indicates that they did not report the matter or hand the persons concerned over to the police.

The disciplinary statute makes further regulations and vests a discretion in the Vice-Chancellor to decide whether to refer matters to the police or to take other action. These include (s 4(2)(d)) the imposing of residential conditions upon the students concerned.

"Impose conditions for a fixed period and the students attendance at or, his enjoyment of the privileges of, the University."

Once such a penalty is imposed the student has a right of appeal (s 6).
It appears that the plaintiffs did not appeal as provided in these provisions. Appeal is provided for under the University of Technology Act and all other rules and actions are, of course, subject to the Constitution of Papua New Guinea and to the rules and laws of the country.

I now go on to events leading up to the aforementioned state of emergency.

These are given by the plaintiffs themselves in their affidavits and in the oral evidence adduced in court and by various witnesses for the defendants.

During May 1991, or thereabouts the National Parliament voted certain increases in their remuneration to themselves. The students at the defendant University and colleagues at the University of Papua New Guinea protested. Clearly there is a right of free speech enshrined in the Constitution and the students are legally and morally entitled to make comment on persons in public life. However events went further. An assembly was held to address the students — again there is a right of association enshrined in the Constitution and peaceable exercise of those rights is protected by law. A boycott was called for. A decision was made to hold a referendum of the 1,300 students about this boycott. I can find no fault with this exercise of the democratic process. Exhibit 12 describes what happened when the referendum was commenced. Among other things a group of students estimated to be 20 to 30 in number were shouting at the others. There was kicking and breaking of the ballot boxes. Stones and sticks and bottles were thrown. This disruption led to an abandoning of the referendum. Exhibit 12 is made by an independent witness. I find that this is not a proper exercise of the right of free choice by the 1,300 students.

Events went further. Cars were commandeered. There are descriptions of at least two of these being destroyed but the list of others detained does not give complete information as to what happened to them. A building was broken into and goods and liquor stolen. Intimidating notices of a threatening and obscene nature were put on notice boards directed at some students. A vehicle carrying soft drinks was held up and its contents looted. Racist threats against citizens of certain parts of the country were issued. Damage estimated to cost K60,044.00 was done to University property.

These matters go far beyond the exercise of the Constitutional right of free speech and the right to comment on persons in public life.

The first defendant then made what was called a declaration of a state of emergency. He says in evidence he was so empowered by s 29(c) and his predecessor had made such a declaration also.

The declaration is dated 26 May 1991 but, according to the evidence, came into effect on 19 June 1991. It bans meetings without permission, gives rights of search over and above those in the Search Act (Ch No 341) and vest powers of restriction of movement and the right to suspend.

The Constitution refers to certain emergency powers which permit the suspending of certain Constitutional rights and the imposing of restrictions in certain stated situations. As stated by counsel for the plaintiff there are provisions following from this Constitutional provision in the "Emergency Provisions Act Chapter 33". *1 This vests powers in the Head of State to introduce certain restrictive provisions and suspend rights. Only on due declaration can these restrictions be imposed.

I do not consider that the powers of s 29(c) of the University of Technology Act give the Vice-Chancellor powers to declare a state of emergency of the type vested in the Head of State to restrict rights and vest powers of search. The Papua New Guinea University of Technology Act is subject to the Constitution and cannot authorise or make restrictions that purport to supersede the Constitution.

The first defendant has powers to act in an emergency. An emergency is not defined in the Papua New Guinea University of Technology Act. The Interpretation Act (Ch No 2) defines an "Emergency Act", meaning an Act of the Parliament (viz, a piece of legislation) and an "Emergency Law". It does not define "emergency". Hence since it is not defined in the Papua New Guinea University of Technology Act itself nor in the Interpretation Act, it should be given its normal meaning. I find this from the Penguin English Dictionary to mean "an unexpected and dangerous situation requiring immediate action". Counsel for the defendants refers me to Re-Amand (No 2) [1942] 1 All ER 236: "an emergency can be used to describe a state of things which is not the result of certain occurrences. The condition of things causing a recent apprehension or near approach of danger which would constitute an emergency".

I find the Vice-Chancellor had power to take certain actions in an unexpected and dangerous situation. He was obliged, in accordance with the Act, to refer to proper authority within the University when that body convened and they were not across the board, carte blanche, empowering suspension of Constitutional and other rights.

I find from the facts in the evidence before me that it was an unexpected and dangerous situation — there was a disruption of the students’ mess, there was a disruption of the voting I have described, cars were stolen and held, some actions by certain students led to fear and intimidation of others.

I find the Vice-Chancellor in this situation was empowered to act in individual cases and in the individual situations. I also find he had the powers referred to in the student disciplinary statute to restrict the residence of certain students.

Although I have found he had no power to act across the board by suspending rights I find he could restrict individual residence under s 29(c) of the Papua New Guinea University of Technology Act and under the Student Disciplinary Statute.

However I also find that both these powers are subject to review by the appropriate authority of the University.

I have reviewed the evidence before me in regard to each plaintiff, both the evidence adduced orally in the District Court and on affidavit I find there is prima facie evidence that they interfered with the peace of others and acted in a way that could amount to criminal action. These range from insulting words likely to cause breach of the peace, threatening words likely to cause a breach of peace to driving without a proper licence and without the authorisation of the owners of the vehicle and in a reckless manner.

All of these matters in my view, would have entitled the first defendant to restrict the right of residence of each of the student plaintiffs involved.

For this reason I am prepared not to declare the actions of the first defendant null and void because, in my view, he still had power to make the decisions he made but that these decisions were subject to proper referral to the appropriate authority under s 29(c) of the Act and s 6 of the Student Disciplinary Statute.

I further consider, although this has not been referred to by either counsel that this is a matter in which a court has been asked to give equitable relief and the court is entitled to look at equitable principles when considering its decision to give relief.

I find that the plaintiffs’ hands are not completely clean and I am entitled to bear this in mind when considering the equitable as well as legal relief.

For these reasons I am not prepared to grant the declaration sought; however I remind and direct the defendants that they are obliged to hear the plaintiffs individual case in accordance with their own legislation.

Declarations refused

________________

Lawyer for the plaintiff: Don Sawong & Associates.
Lawyer for the defendant: Gadens Ridgeway.