Emos v Bagrie [2020] PGNC 1; N8166 (6 January 2020)

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ABAINA EMOS, ELIZABETH KOMBO, ANGELA POMAT,
SILON GABUS, SHARLEEN TREPPE, AMALYN MAVI,
BRENDON MOHE, DRISCOLL RAGAT, DEREK TOWELLIE,
TIMERLYNE TUNAMO, SHEKINAH KOPI, JOE NULI,
LISA WULYING, CORNELIUS JEBELEI, ROLLEN SALANGAU,
RAYMOND MANGAEA, ANDREW ANDAPE, MIRIAM LAPIM
& ELTIE MIROI
Plaintiffs

DR SEBASTIAN BAGRIE, CHAIRMAN, GOVERNING COUNCIL, MADANG TEACHERS COLLEGE
First Defendant

HUMAN RIGHTS – disciplinary proceedings re college students – right to full protection of the law, Constitution, Section 37 – proscribed acts, Constitution, Section 41 – principles of natural justice, Constitution, Section 59 – whether students alleged to have committed disciplinary offences afforded full protection of law, dealt with fairly, dealt with harshly or oppressively.

The 19 plaintiffs were teachers college students. In the week prior to commencement of final examinations for the year,they were given notice of their termination or suspension from studies on various disciplinary grounds (eg involvement in alcohol-related incident while on practical teaching assignment, entering dormitory of opposite sex, being pregnant). The day after being notified of the action taken against them, they instituted proceedings in the National Court by applications for enforcement of human rights. The chairman of the governing council, the college principal and the college were named as defendants. The Court granted interim injunctions that stayed implementation of the decisions regarding the plaintiffs and allowed them to sit their final examinations. They sat their examinations and 13 of them (who were final year students) were permitted to graduate. A joint trial of the 19 human rights enforcement applications was conducted. The plaintiffs claimed that their human rights were breached in various ways: denial of full protection of the law under s 37(1) of the Constitution, dealt with harshly and oppressively contrary to s 41(1) of the Constitution and denial of natural justice contrary to s 59 of the Constitution, and sought declarations to that effect, damages and other remedies. The defendants denied all allegations of breaches of human rights and argued that the plaintiffs had been dealt with fairly in accordance with the student code of conduct.

Jacob Sanga Kumbu v Dr Nicholas Mann (2012) N4746
Yareng v Kiong &PNG Maritime College (2019) N8152
Wilson v Kekeya & Divine Word University (2018) N7613

1. CANNINGS J: The 19 plaintiffs were students at Madang Teachers College. On Tuesday 22 October 2019, with their final examinations due to commence the following week, they were given notice of their termination or suspension from studies on various disciplinary grounds (eg involvement in alcohol-related incident while on practical teaching assignment, entering dormitory of opposite sex, being pregnant).

2. The next day they instituted proceedings in the National Court by applying for enforcement of their human rights. The Chairman of the Governing Council, Dr Bagrie, the Principal, Mr Sully, and the College were named as defendants. On 23 October 2019 the Court granted interim injunctions that stayed implementation of the decisions regarding the plaintiffs and allowed them to sit their final examinations. They sat their examinations and 13 of them (who were final year students) were, on 29 November 2019, permitted to graduate. A joint trial of the 19 human rights enforcement applications has been conducted.

3. The plaintiffs claim that their human rights were breached in various ways in that they were denied the full protection of the law under s 37(1) of the Constitution, dealt with harshly and oppressively contrary to s 41(1) of the Constitution and denied natural justice contrary to s 59 of the Constitution. They seek declarations to that effect, damages and other remedies. The defendants deny all allegations of breaches of human rights and argue that the plaintiffs were dealt with fairly in accordance with the student code of conduct.

5. Eight plaintiffs were punished for their involvement in a social outing that took place when they were engaged in a practical teacher education program at Tabele Primary School, Bogia District, in August 2019. They were allegedly with the Head Teacher, drinking alcohol and fraternising with PNG Defence Force members on an unauthorised trip to another village, and one of the group of eight, Derek Towellie,had an argument with local villagers that resulted in him being detained overnight at the Bogia Police Lock-up.

6. Three plaintiffs were punished for their involvement in an alcohol-related incident on 29 August 2019 at Gusap Primary School, Usino Bundi District,where they had been posted for practical teacher education.

7. Six plaintiffs were punished for on-campus breaches of discipline involving male students entering the girls’dormitory and various other standalone incidents.

8. Two plaintiffs were punished for becoming pregnant while undertaking studies.

9. It is difficult to say when each of the incidents actually occurred as none of the allegations were put in writing and no formal disciplinary charges were laid.

10. The only records of the disciplinary proceedings are in the minutes of two Discipline Committee meetings, which led to written recommendations for disciplinary action to be taken against the plaintiffs (except for the two plaintiffs punished for being pregnant) being forwarded to the Governing Council, which met and decided on the Discipline Committee’s recommendations; and the disciplinary notices issued to each of the plaintiffs on 22 October 2019.

11. On the basis of that limited written evidence, annexed in affidavits by the Principal, Mr Sully, combined with the evidence of each of the plaintiffs, I have in table 1 summarised the disciplinary action taken against each of the 19 plaintiffs.

No	File ref	Name	Year	Offence	Penalty	Status
	343/19	Abaina Emos	2	Tabele Primary School incident – but not including alcohol consumption	12 months suspension	Still subject to suspension
	344/19	Elizabeth Kombo	3	Tabele Primary School incident – including alcohol consumption	Termination	Graduated
	345/19	Angela Pomat	2	Allowing her boyfriend to visit her while on practical teaching assignment at Megiar Primary School	Warning	Still subject to warning
	346/19	Silon Gabus	3	Tabele Primary School incident – including alcohol consumption	Termination	Graduated
	347/19	Sharleen Treppe	3	Tabele Primary School incident – including alcohol consumption	Termination	Graduated
	348/19	Amalyn Mavi	3	Tabele Primary School incident – including alcohol consumption	Termination	Graduated
	349/19	Brendon Mohe	2	Tabele Primary School incident – including alcohol consumption	Termination	Still subject to termination
	350/19	Driscoll Ragat	2	Tabele Primary School incident – but not including alcohol consumption	12 months suspension	Still subject to suspension
	351/19	Derek Towellie	3	2 offences: Tabele Primary School incident – including alcohol consumption + entering girls’ dormitory	Termination	Graduated
	352/19	Timerlyne Tunamo	2	Allowing her boyfriend to enter girls’ dormitory	12 months suspension	Still subject to suspension
	366/19	Shekinah Kopi	3	Becoming pregnant while a student	12 months suspension	Graduated
	367/19	Joe Nuli	1	Gusap Primary School incident – including alcohol consumption	Termination	Still subject to termination
	368/19	Lisa Wulying	3	Becoming pregnant while a student	12 months suspension	Graduated
	369/19	Cornelius Jebelei	3	Gusap Primary School incident – including alcohol consumption & relationship with grade 7 female student	Termination	Graduated
	370/19	Rollen Salangau	3	Entering girls’ dormitory	12 months suspension	Graduated
	371/19	Raymond Mangaea	3	Gusap Primary School incident – including alcohol consumption	Termination	Graduated
	372/19	Andrew Andape	3	Entering girls’ dormitory	12 months suspension	Graduated
	373/19	Miriam Lapim	3	Allowing her boyfriend to enter girls’ dormitory	12 months suspension	Graduated
	374/19	Eltie Miroi	3	Spending night in unauthorised residence while on practical teaching assignment	Termination	Graduated

12. As for the sequence of events, I make the following findings of fact, based on the limited evidence presented.

13. The Tabele Primary School (involving eight plaintiffs) and Gusap Primary School (involving three plaintiffs) incidents occurred in August 2019.

14. Incidents involving other plaintiffs occurred on unknown dates, probably around the same period, in August-September 2019.

15. Deputy Principal Kason Ikumali led an investigation team to Bogia in early September 2019 to investigate the allegations pertaining to the Tabele Primary School incident. Mr Ikumali has reported the results of his investigation in an affidavit that was admitted into evidence at the trial. However, the report of his investigation, which apparently was given to the Discipline Committee, is not in evidence; and it is clear that that report was not given to any of the eight plaintiffs found guilty for their involvement in the incident.

16. The Discipline Committee convened on 1 October and 16 October 2019. At each meeting the Committee addressed reports of incidents involving the plaintiffs and prepared recommendations for the Governing Council regarding 17 of the plaintiffs: all except the two who were pregnant; those two (Shekinah Kopi and Lisa Wulying) appear to have been treated separately and not dealt with by the Disciplinary Committee at the meetings of 1 and 16 October 2019.

17. There is conflicting evidence on whether the plaintiffs were given the opportunity to address the Committee on whether they should be found guilty of breaching the student code. On the one hand the plaintiffs say that they were not given the right to be heard. On the other hand Mr Sully has given evidence that they were permitted to appear, and did appear, before the committee and that most admitted the allegations, both in writing and in person when they appeared. I note that the minutes of the DisciplineCommittee’s meetingsdo not state that any of the plaintiffs appeared before the committee, though there is reference in a number of instances to the plaintiffs admitting to the allegations.On this issue of fact of whether the plaintiffs were given the opportunity to appear, I find that the plaintiffs have not discharged the burden of proving that they were not given the opportunity to appear. I accept Mr Sully’s evidence and find that prior to the meetings of the committee the plaintiffs were verbally informed of the allegations against them – though none were put in writing and no charges were laid against them – and given the opportunity to make statements in writing, which were then given to the Committee, together with some investigation reports. Some plaintiffs appeared before the Committee and were given the opportunity to address the committee. However, whatever they said was not recorded in detail other than to state that they admitted the allegations.

18. On 18 October 2019 the Governing Council met and largely adopted the recommendations of the Disciplinary Committee.Termination or suspension notices were signed by Dr Bagrie and dated 18 October 2019.

19. The notices were given to the plaintiffs on 22 October 2019. The notices were expressed in general terms and did not identify which particular provision of the code of conduct had been breached.

20. The Code is expressed in general terms. There are ten basic rules, described as:

21. Examples of common offences against each of the ten Rules are provided but it is emphasised that the list is not exhaustive and that students can be charged for offences not specifically listed. For example under Rule 4 (respect for public authority) the following details appear:

22. As for Rule 6 (behaviour befitting a student), the following examples are given:

23. In the week commencing 28 October 2019 the plaintiffs sat their examinations, in accordance with the court order of 23 October 2019.

24. On 29 November 2019 the graduation ceremony took place and 13 of the plaintiffs who had been subject to termination or suspension notices were permitted to graduate. The circumstances in which this occurred are explained in Mr Sully’s affidavit, sworn and filed on 5 December 2019, admitted at the trial as exhibit D4.

The decision of the GC [Governing Council] was made clear by me on the 28/11/19 to the College-assigned lecturers and staff organising the graduation ceremony including issuance of graduation gowns, sitting arrangements for graduating students and most importantly the list of students graduating.

I trusted my lecturers and assigned them to the task of organising the graduation ceremony. However it was not until the morning of 29/11/19 I was informed that the terminated and suspended students will graduate as well because their names were on the graduating students list, each were issued with a graduation gown and sitting arrangements were already made for each to take his/her seat.

Other GC members were also informed of the terminated and suspended students graduating and given the situation that the College ground (campus) was already fully packed with thousands of people including invited guests and VIPs to witness and take part in the graduation ceremony, a general understanding was reached amongst the GC members to allow the concerned students to graduate so to avoid disruption of the graduation ceremony and further avoidance of any unwanted commotion putting everyone’s lives at risk at graduation.

The College management and the GC do however note that there was an element of inside manipulation involved in the organising of the graduation ceremony in respect of the abovenamed students ultimately graduating bringing into disrepute the authority of the GC and the disciplinary processes and procedures of the MTC, which have been followed in the many past years in dealing with students who offend against the College Rules.

25. It is apparent from Mr Sully’s evidence that the 13 plaintiffs graduated, contrary to the decisions of the Governing Council, and contrary to his instructions, which were to give effect to the decisions of the Governing Council.

26. Mr Akuani, for the defendants, submitted that the plaintiffs were treated fairly, by being given multiple opportunities to state their case in writing and by appearing before the Discipline Committee. Each of them had committed very clear breaches of the Code of Conduct, which they had agreed on enrolment to be bound by. All plaintiffs were permitted to sit their final examinations. They were allowed to remain living on campus. There were no threats to evict them. The 13 final-year students graduated, so even if any of their human rights were breached – but none is conceded – they have not suffered any prejudice.

27. These are appropriate submissions to make as it would seem that the defendants were aware of the obligation to treat the plaintiffs fairly and properly regarded maintenance of discipline of the student body as of prime importance to ensure the integrity and reputation of Madang Teachers College. This is not a case in which the College has entirely disregarded the rights of its students to a hearing. Nor is it a case in which the defendants have acted in bad faith, out of malice or ill-will towards any of the plaintiffs. I am satisfied that the defendants have acted in good faith, intent on doing the right thing by the College and by all the students of the College.

28. However, I uphold the submissions of Mr Wak for the plaintiffs that, in trying to do the right thing, the defendants have fallen short of the objective standards of procedural fairness that must apply to all tertiary institutions in the country when they are enforcing a disciplinary code for their students (Jacob Sanga Kumbu v Dr Nicholas Mann (2012) N4746, Wilson v Kekeya & Divine Word University (2018) N7613, Yareng v Kiong & PNG Maritime College (2019) N8152).

29. The defendants failed to adhere to the principles of natural justice enshrined in s 59 of the Constitution in their dealing with the plaintiffs. Section 59 (principles of natural justice) of the Constitution enshrines the principles of natural justice in the law of Papua New Guinea in the following way:

(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.

30. I find that the defendants did not act fairly and were not seen to act fairly, because:

31. The finding that the defendants failed in their duty to the plaintiffs to act fairly and also in their duty to be seen to act fairly, has immediate consequences under two of the key human rights provisions of the Constitution: Section 37(1) (protection of the law) and Section 41(1) (proscribed acts).

Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.

Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case—

(b) is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or

(c) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

34. By making momentous decisions affecting the lives of the plaintiffs unfairly, the defendants failed to afford them the full protection of the law under Section 37(1) of the Constitution and, by notifying the plaintiffs that they were terminated or suspended from studies less than a week before final examinations were due to commence, dealt with them in a manner that was harsh and oppressive and not warranted by the particular circumstances of their particular cases contrary to Section 41(1) of the Constitution.

35. Though 13 of the 19 plaintiffs graduated, that was, I find, an accident of fate. It was certainly not the intention of the defendants that those plaintiffs would graduate. The fact that they graduated does not prevent the Court making a finding that their human rights were breached. Though their graduation has ameliorated the consequences of the breaches of human rights that have occurred, I am satisfied that in the case of those 13 plaintiffs, as well as the other six plaintiffs, on the evidence that each has given, they suffered stress and anxiety as a result of being given notice, one week before their final examinations, that they were being terminated or suspended from studies.

36. The plaintiffs seek declarations that their human rights were breached and orders for their reinstatement as students, and damages. Such relief is available under Sections 57(3) (enforcement of guaranteed rights and freedoms) and 58(2) (compensation) of the Constitution.

A court that has jurisdiction under Subsection (1) [Supreme Court or National Court] may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).

A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).

39. I consider that it is necessary and appropriate to make declarations that the plaintiffs’ human rights were breached.

40. As for damages, an entitlement arises under Section 58(2). However, I am not inclined to take the conventional approach and set a trial for assessment of damages. The best and most convenient and the fairest way to resolve the issue is, as I did in the similar case of Wilson v Kekeya & Divine Word University (2018) N7613, to award notional damages, which I fix at the sum of K1,000.00 for each plaintiff. I am aware that this approach may seem arbitrary as the circumstances of each plaintiff are unique. One of them, Angela Pomat, incurred only a warning, not a termination or suspension from studies. Another, Derek Towellie, was found guilty of two different disciplinary offences, yet he was permitted to graduate. However, I think it is in the interests of all the parties to quickly bring the proceedings to a close. All parties need to learn from what has happened and move on with their lives. And that includes the College: it needs to learn and move on. Awarding all plaintiffs the same amount is the best way to get the learning process moving.

41. The plaintiffs have engaged a private law firm to run this case, so I will award them costs in the fixed sum of K1,000.00 each.

42. Nothing in this judgment should be taken as a criticism of the College’s tough stand on student discipline. However, the defendants must understand that when they seek to enforce discipline they remain under a duty to at all times protect and enforce and not undermine the human rights of the students.

43. The Code of Conduct needs replacement. It is vaguely and poorly expressed. A Code that makes it a disciplinary offence for a woman to become pregnant, demands, in 2020, reconsideration. The Code provides no procedure for laying of charges. It is not a workable or practical document. It promotes institutionalised unfairness.

Judgment accordingly.
________________________________________________________________
Bradley Wak Lawyers: Lawyers for the Plaintiffs
William Akuani Lawyers: Lawyers for the Defendants

National Court of Papua New Guinea

Emos v Bagrie [2020] PGNC 1; N8166 (6 January 2020)