In the Matter of The Constitution S57; Honk Kiap v Chairman of Board of Governors Kerevat National High School, Minister for Education and The State [1995] PGNC 34; N1381 (29 September 1995)

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).

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INJIA J: The plaintiffs are fostudestudents from the Highlands who were attending Kerevat National High School in 1993. They declaratory orders thrs that the termination and suspensionces issued by the first defendant in July 1993 be declared ared null and void, that the plaintiffs be immediately reinstated and that be repatriated to the scho 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 slaze. Consequently, some studenrs were dealt by way of disciplinary proceedings by thby the school’s governing board and others being referred to the police for prosecution. Of those sts dealt with dith disciplinarily, some 10 students were expelled and some students reprimanded. Some students withdrew classes voluntarily.

This application is made by Highlands nts. On 24 March, cla, claims in respect of 33 students were compromised and a consent order was made for them to be re-enrolle1995 or 1996 depending on a on availability of space at Kerevat or any other State-run National High School. These plaintiffs are:

1.	Albert Alo	12.	Timothy Lanton	23.	Benny Moses
2.	Wendy Andrew	13.	Paulus Pank	24.	Kefi Ofi
3.	Meck A. Waya	14.	Kennedy Paul	25.	Nickson Tiri
4.	Simon Dinongo	15.	David Pip Iswe	26.	Anthony Ignatus
5.	Tom Dom	16.	Killo Rasaka	27.	Utia Blehe
6.	Evazo Fomio Yare	17.	Levi Robin	28.	Docas Evana
7.	Keven Franis Nami	18.	Kim Sakul	29.	Petronia Kaima
8.	Daniel Kale	19.	Mark Senis	30.	Pendine Lui
9.	Phillip Kapari	20.	Peter Sol	31.	Janet Nol Gagul
10.	Ben Kona	21.	Julius Tokale	32.	Magdalene Popna
11.	Kop Korowa	22.	Riben Yama Inua	33.	Florence Siba

Also on 24 March 1995, the Court ordered by consent, that the cases of the following students proceed to trial.

1.	Paulus Ain	9.	James Alfred Pepa
2.	Gibson Bade	10.	James Pilya
3.	Kelly Gene	11.	Joseph Subam
4.	Peter Kaupa	12.	Emmanuel Vitus
5.	Noriah Kiaa	13.	Kohai Wak
6.	Justin Konda	14.	Wesley Yosia
7.	David Mondo	15.	Nicholas Lep Lepi
8.	Kepakan Paulan Naupo	16.	Wak Kowal

	Name	Grade
1.>	James Aruru	12
2.	Simon Bol	12
3.	Honk Kiap	12
4.	Gerald Monale	12
5.	Luke Avusi	12
6.	Simon Kunamen	12
7.	Pako Teka	12
8.	Wapa Irinaya	12
9.	Dennis Pocitu	12
10.	Yoanes Tongunas	11

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 dwth.

Allegations of discrimination in a State-run educational institution is a serioserious allegation which must be proved by the plaintiff with sufficient evidence. Once a prima facie is esta 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, iearspears from the evidence each individual student want was dealt with separately by the school’s governing council and it was only fair and just that eaudent affected was dealt with in this manner. The edue educatiohts of inof individual students were affected and principles of natural justice demanded that each individual case be considered separately. The record is thatighlandslands students who rew classes were allowed toed to re-enrol on their own merits whilst refusing re-enrolment to another 18 Highlands students on their erits. Also only 10 Highlands stsdents were expelled lled at the first instance and not all the Highlands students. Students fhe coast were alre also dealt with by the governing council. Anon the face of it, I canI cannot find as a matter of fact the governing council of the school adopted discrimnatory practices against the Highlands stds students only. Also the governingcil iinguding the principalcipal of the school had wide management powers over the shool to inform itself in whatever manner it saw f to the conduct of students under its control and to deal with students whom they believed eved were responsible for the fight which took place on the school grounds between the Highlands and Coastal students. This court wit interfere were with their judgment on those administrative matters.

The plaintiff relies on Regina Kembol v Paul Nepau & Another N1222 [1994] but tase is distinguishable from the present case. In that that casere was inas in evidence a disciplinary policy of the school which prevented a student enrolled at an international school from being re-enrolled at a State-run community school. In this therno such officofficial cial discriminatory policy.

I also find that the actions of the governing council and the National l Committee were not harsh and oppressive as against the Highlands students.

In rela relation to the observance of the principles of natural justice, the 10 expelled students were expelled after a full disciplinary hearing by the governing council. This is clearly reflected in the minutes of the governing council which is in evidence. These nts subsequently appy appealed to the National Education Board Appeal Committee which heard and dismissed the appeals. I have aead the minutes ofes of thieal committee. I do not see anythingg witg with the wthe way in which the original disciplinary proceedings and appeal proceediere heard and determined. The studenncerned were were were given adequate opportunity to be head and good reasons were given for the decision. I find that the prins of n of natural justice were observed by the governing council and the National Education Board Appeal Committee in its deliberations. Therefore, I dismiss tclai claims.

In relation to the 18 students who withdrew voluntarily because of the trouble but have been refused re-enrolment, one of theons why the governing cuncicuncil decided not to re-enrol them was, according to the affidavit of the Secretary for Education Mr Tetaga, because “their behaviour and conduct warranted expulsion under the school rules.” The governing council itgilf gives reasons which go beyond the reason given by Mr Tetaga. One typical example is the case of student Moses Asei.&#Mr Asei was advised of his rights to withdraw from studies and seek re-enrolment. He ; He withdrew a 1994 he94 he applied for rolment stating his reasons as required by the governing coug council. The governing council in response wrote this letter:

Tverning council considered your request along with those otse others who had applied. They took consideration reon reports of your behaviour and attitude during events of last year, and also your academic progress to the time you left. I am sorry to to tou that that the council decided that you should not rnot return to school.

You are of course free to apply to other instons, but I would recommend you try to put events of last year behind you, find a job and wond work towards matriculation through one of the University Centres.

Mr Asei has not filed any affidavit explaining his role, if any, in the trouble at the school and his academic performance in the period preceding his wthdrawal from classes.

The case of student Paulus Ain is one example of a student who was involved in the trouble. He hasd an affidavit.&#160 Paulus Ainis affidavit expt explained his role in the trouble as a leader who stood up in front of thool’s staff members and spoke on behalf of the Highlands students as a “peace-mace-maker”. Paulus Ain withdrew frosselasses and was refused re-enrolment.

The governing council’s power to refuse enrolment is set ut at page 10 of trevat National High School Handbook which provides:

“A student who has withdrathdraw from school may apply to the chairman of the governing council asking t be re-enroleed. Evidehowing that the factofactors which led to the student’s withdrawal have been eliminated must be attached to the application (eg Medical Certificates). One governing council ha p ha power to decide whether ther the student may be re-admitted or not. This decision is also depended upon the availability of sp#8221;

The school’s governing council has the the overall say in who gets re-enrolled at the school. It is true tnce aumbedent dent student withdraws from classes, he is tais taking upon himself the risk of being left without a space in future be new year brings new intakes and space in our four National High Schools, as we all know, iow, is limited. Refusal of students e-enro-enrolment will be based on a whole lot of considerations including the two considerations specified in the Handbood.&#160ording to the schools governing council, it appears that availability of space was not a co a consideration which affected its decision. It was the eliminationhe fthe factors which influenced the withdrawal which concerned the governing council. There ar factors involved lved here. Thst one is the trouble atle at the school in 1993 which disrupted the school. This wasowed by a s of disf disciplinary proceedings against some students both Highlands students ents and Coastal students resulting in some stu being found guilty as a result of which 10 students were expelled, whilst others were impo imposed less severe punishment like a good behaviour bond. Other sts were arrested aned and tried in courts of law. All these actiere taken byen by the governing council in order to restore peace, order and normalcy in the school. These purposes were satisfactorily achieved and the s was up and running again. This fact common know know knowledge and it is not something which the students applying for re-enro have to procide evidence of. If thes anything wing wron wrong done by the student during the trouble which warranted the refusal for re-enrolment, this was not made know to the student concerned for their explanation. And the nts affected were were not told of what they were alleged to have done and given an opportunity to be heard on those allegations before the decision to refuse rolment was made. As far as the nts were cone concernecerned, now that this first factor was eliminated, they believed they were entitled to be re-enrolled. Angree with them.

The second factor is academic performance. The students were not tow how they performed in the period preceding the trouble or during the trouble and why they were unable to return to school and up from where they left off academically so as to warrant their refusal for re-enrolment.

In relation to space, space as I have said in our 4 National High Schools is limited. Gihe space problem in our our National High Schools, they will have little or no chance of being enrolled in those other National High Schools. With their backg, they wily will have a toume finding a place at anothanother State-run National High School. Tore I would treat the refe refusal to re-enrol for disciplireasons associated with their supposed misconduct during thng the trouble as akin to expulsion from the school just as Mr Tetaga has ed the refusal for re-enrolenrolment as “expulsion under the school rules”.

It is a truism that not all students are or were trouble-makers at the school. There are only a tudents wnts who cause trouble in our schools. Many students arocent and and certainly do not approve of the conduct of the trouble-makers but because the misconduct of few students disthe s, they are all afll affected. Tstudents cannot remain onin on campus and perform effe effectively. This prompts their withdrawal and this decision is made individually. That is exactly whatened ined in this case. Now thay have applied foen foenrolment, each student’s case should have been considered separately and each studentudent given a fair and full opportunity tend tlegations of thei their misbehaviour in 1993 and the allegallegations concerning their unsatisfactory academic record. They wer informed of what what was specifically alleged against them which justified the refusal for re-enrolment and given an opportuni respond to those allegations. ad, this decision was made made in their absence whilswhilst the students were living away from the school.

Education is a fundamental right of all children in this country. Once a stuis granted spacespace in a State-run National High School and is receiving education in that school, he or she has a right to be provided a real opportunity to d the school and receive an education in order to qualify hify him for a job or for further education in our tertiary institutions in future. His right to attee school hool and receive an education is not absolute though. subject to the schoolRl’s rules relating to qualifications for re-enrolment, discipline, etc. When he is already rece anng an education at the s, his expulsion or refusal to re-enrol following volunatry atry withdrawal from classes must be made in accordance wth the rules of thool which should be designed to observe the principles of s of natural justice which require that a person cannot be expelled or refused re-enrolment without first informing him of the allegations made against him and giving him an opportunity to respond to the allegations against him and good reasons being given for any decision which deprives him of his right to education. Thatnot done in this case case in relation to the 18 students who withdrew volunatrily but were refused re-enrolment.

For theasons, I am of the view that these students have been denied natural justice. I note note that laintiff&tiff’s case is not founded on breach of the principles of natural justice. Neverss, I would still makl make the orders in respect of the 18ents pursuant to ss. 57, 59, and 155 (4) of the Constitutiotution.

I order that Mr Tetaga and the governing council of Kerevatonal High School re-enrol trol these 18 students at Kerevat National High School or any State run National High Schools in 1996. I also order that the governing council of Kerevat National High School specifically make space available for these students to attend the school in 1996.

In the alternative, Mr Tetaga shall arrange for their re-enrolment in other National High Schools. I will not make this ordbj subject to availability of space because these students already had a place in the school and they have a legitimate right to be re-enrolled at that school or any other State-run National High School. The governing counc Kerevaerevat National High School and/or Mr Tetaga must make special accommodation for these students.

National Court of Papua New Guinea

In the Matter of The Constitution S57; Honk Kiap v Chairman of Board of Governors Kerevat National High School, Minister for Education and The State [1995] PGNC 34; N1381 (29 September 1995)