Kembol v Nepau [1994] PGNC 88; N1222 (9 May 1994)

N1222

PAPUA NEW GUINEA
[In the National Court of Justice

OS 114 OF 1994

REGINA KEMBOL
Applicant

v

PAUL NEPAU
First Respondent

BOARD OF MANAGEMENT OF WABAG COMMUNITY SCHOOL
Second Respondent

Wabag: Woods J
9 May 1994

Judicial Review - Education policy - discriminatory rule - authority of Provincial Education Board over Community Schools - discrimination under Constitution.

Applicant in person.
Respondent in person by a member of the Board.

9th May 1994

WOODS, J: The Applicant is seeking judicial review of the decision by the Board of Governors of the Wabag Community School not to enrol Belinda Kembol into the school under a rule of the school not to enrol children who have been to an International School.

The Applicant Regina Kembol has a daughter Belinda who has been attending the Highlands Lutheran International School. However at the beginning of this year the applicant sought to enrol Belinda into Grade 6 at the Wabag Community School to enable her to compete for entrance into a National High School next year.

However the Board of Governors refused to accept her on the basis of a rule they had not to enrol students who have been to International Schools. There was a suggestion in communication with the school that there may have been spare places in grade 6 however the rule was applied.

The applicant has challenged that rule as being unconstitutional as being discriminatory and also that the rule was made contrary to Section 43(4) of the Enga Provincial Education Act 1990.

I am satisfied that this is a matter appropriate for Judicial review as it is a matter of public law namely the operation of an education policy by a public body which could affect the public at large. Any decision on the rule being challenged is a matter of public law although in this case affecting an individual applicant but in such a way that there may be a claim for relief such as that available under Judicial Review.

It is also submitted that this Court should not review this matter as the Applicant has not exhausted all the remedies available provided for under the Act.

The Provincial Government Education Act does provide in Section 7 for the "Reference of certain Disputes to the Cabinet" and it is submitted that such an appeal should be to the Administrator as the substitute for the Cabinet.

However the fact is that with the suspension of the Provincial Government there is no Cabinet. Under a suspension the legal authority of the Provincial Government and thereby the Cabinet would rest not in the Administrator, he has no legal status or identity whatsoever, but in the National Minister for Village Services and Provincial Affairs and the National Executive Council however I must find that that is inappropriate in the circumstances and that the only appropriate avenue of appeal would be to the National Court which is an avenue available in Section 7 in certain instances.

I am satisfied that this is a matter which should be reviewed by this Court.

The Enga Provincial Education Act 1990 provides in Section 43 for the "Constitution etc. of Board of Management's" and in subsection (4) "The Rules of a Board of Management shall be approved by the Provincial Education Board." An affidavit was filed by a Joe Brawa as Chairman of the Enga Provincial Education Board to the effect that the rule excluding students who had attended International schools had never been approved by the Board and that the rule was against the aims of the education system in Enga Province. If such a rule had never been approved by the Education Board in accordance with Section 43(4) it must therefore be inoperative.

The Education Act refers to the objectives of the Provincial Component of the Education Policy and in Section 5 the following are to be respected:

- the rights of parents to send their children to a school of their choice so that they can obtain the education which they wish for the children,

- the desirability of making allowance for a reasonable diversity of educational methods provided that standards of education achievement are not sacrificed;

the above at the least would respect the right to send children to whatever school a parent feels may give the best education and the right therefore also to change schools if the opportunity exists. Any exclusion merely on the basis of the standard would be clearly discriminatory. Of course it must be realised as a practical consideration that it may be harder to transfer children between schools after grade 1 as a school's quota may be full so there is a risk of not finding a place.

I must rule therefore that the rule not only is it inoperative for the obvious reason that the Education Board has not approved it and it is clear why because it conflicts with the objectives of the education system, but I would also find that it is discriminatory and therefore contrary to the Constitution Section 55.

Which reads:

1. Subject to this Constitution, all citizens have the same rights, privileges, obligations and duties irrespective of race, tribe, place of origin, political opinion, colour, creed religion or sex.
   

I find that to discriminate against a child because he or she has gone to one type of school and therefore for that reason alone cannot be accepted into another must be contrary to the intent and purpose of Constitution Section 55.

It was submitted on behalf of the Board that they had had a large number of similar applications this year and that they did not have the space anyway. Space of course is another problem and I am not sure whether I can order the school to accept the applicant's application or just leave it to the Board to receive and deal with the application to enrol as any other application to transfer. Of course a school is not bound to accept all applications to enrol, they can only do it if they have space, and if there are more applications than spaces then the school has to adopt a fair system of selection, whether by ballot or by time of application. Remember a School Board is a public body and is answerable to the Provincial Education Board directly but also by its reputation and credit to the public at large so must always be seen to be acting fairly and it must always be able to produce the figures to show that it is utilising its resources, namely child spaces, fully.

However in this case as it is clear from the evidence before me that the refusal to enrol was on the basis of the rule and not on the basis of space and there may have been spaces in Grade 6 and as the year is well under way I feel that it is appropriate for this Court to exercise its discretion and make an appropriate order in favour of Belinda.

I order that the Board of Governors for the Wabag Community School accept the enrolment of Belinda Kembol into grade 6 for the remainder of this year.