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Sila v Independent State of Papua New Guinea [2024] PGNC 321; N10976 (3 September 2024)


N10976


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


HR (OS) NO. 2 OF 2018


BETWEEN:
BRUCE SILA for himself and 10,813 other displaced Manam Islanders
-Plaintiffs -


AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
-First Defendant-


AND:
CHAIRMAN, MANAM RESETTLEMENT AUTHORITY
-Second Defendant-


AND:
MADANG PROVINCIAL GOVERNMENT
-Third Defendant-


AND:
MANAM RESETTLEMENT AUTHORITY
-Fourth Defendant-


Madang: Narokobi J
2023: 11th December
2024: 3rd September


TORT OF NEGLIGENCE FOR BREACH OF STATUTORY DUTIES –Private Law- Breach of s 4 of the Manam Resettlement Authority 2016 – Declaratory Orders Sought – Appropriate Orders.


HUMAN RIGHTS – Whether ss 36(1) and 37(1) breached – Evidence Considered - Findings Made of Human Rights Violations.


NATIONAL GOALS AND DIRECTIVE PRINCIPLES – Role in the Interpretation of Human Rights – s 32 of the Constitution.


HUMAN RIGHTS – Whether enforcement of Plaintiffs’ right to freedom of information under s 51 of the Constitution should be granted – Relevant Considerations – Orders granted.


REMEDIES – ss 22, 57(3) and 57(5) of the Constitution – Appropriate Remedies in the Circumstances.


The Plaintiffs have been displaced by a volcanic eruption in 2004 on Manam Island, Madang Province. They have been resettled on three care centres on the mainland Bogia District and part of Sumkar District of Madang province. The government, recognising their plight have facilitated their reintegration into a new environment through the passage of two pieces of legislation, the most recent being the Manam Resettlement Authority Act 2016 (MaRA Act). Their claim is that since 2004, they have not been permanently resettled by the Manam Resettlement Authority (MaRA) as required by the MaRA Act and they have suffered, and continue to suffer violation of their human rights.


Held:


  1. The Defendants have breached their statutory duties to the Plaintiffs as displaced persons under s 4 of the MaRA Act and an appropriate declaratory order is made.
  2. The Plaintiffs waiting for 20 years to be resettled by the Defendants is unreasonable, resulting in the Defendants breaching the Plaintiffs’ rights to ss 36(1), and 37(1) of the Constitution.
  3. What is germane to the inherent human dignity of Papua New Guineans is what is stated in the National Goals and Directive Principles because s 32 of the Constitution requires the consideration of the National Goals and Directive Principles in the interpretation, application and enforcement of human rights guaranteed by the Constitution.
  4. Owing to the substantial amounts of money that was expensed by the First Defendant for the advancement of the interests of the Plaintiffs, the Plaintiffs had a right to be informed of how the monies were spent for their supposed benefit under s 51(1) of the Constitution. As a result, orders are made for reports to be provided to the Plaintiffs of how monies appropriated to the MaRA for the benefit of the Plaintiffs were spent.
  5. In the circumstances an award for compensatory damages under s 58 of the Constitution is not appropriate.
  6. Instead, appropriate orders under ss 22, 57(3) and 57(5) of the Constitution are made to ensure: a) compliance with s 4 of the MaRA Act; b) proper governance structures under the Act are met; and c) adequate funding is made available to MaRA from its Parliamentary appropriations to protect the human rights of the Plaintiffs.

Cases Cited:


Application by Ireeuw, Wawar, Ap, and Wakum [1985] PNGLR 430
Commander of Beon Correctional Institution v Mal (2022) SC2186
In the Matter of Enforcement of Basic Rights Under the Constitution Section 57 (2007) N2969
Goma v Protect Security & Communication Ltd (2013) SC1300
Konori v Jant (2016) N5868
Mesulam v Joku (2023) SC2499
Morobe Provincial Government v Kameku (2012) SC1164
Petrus v Telikom PNG Ltd (2008) N3373
Re Fish Ban (2020) N8221
Sam Koim v. Peter O’Neill & Ors (2015) N6558
SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314
Woolcott v Nivani Ltd (2023) SC2335
Amaiu v Yalbees (2020) SC2046


Legislation:


Audit Act 1989
Constitution
Manam Resettlement Authority Act 2016
Public Finance (Management) Act 1995


Other Materials:


Constitutional Planning Committee Final Report 1974
United Nations Guiding Principles on Internal Displacement


Counsel:


Mr T Ilaisa Jnr, for the Plaintiffs
No appearance for the First and Third Defendant
Mr G Haumu, for the Second and Fourth Defendants


JUDGMENT


3rd September 2024


  1. NAROKOBI J: It is 20 years now, since the volcanic eruption on Manam Island in October 2004 and the government of Papua New Guinea has not delivered to the displaced people of Manam Island, their “Promised Land.” Manam Melanesian culture has a chieftainship system. This system runs across their island into the Schouten Islands of East Sepik Province such as Biem. Their Chief is known as the “Kukurai.” One of the many roles of the Kukurai is to look after his people. The fundamental question the Plaintiffs ask, is whether the “Kukurais” or “Chiefs,” of Papua New Guinea charged by law to look after them, have discharged that responsibility?

Background


  1. The Plaintiffs are what is described as “internally displaced people” or “IDPs.” This term stems from the United Nations Guiding Principles on Internal Displacement (https://www.unhcr.org/sites/default/files/legacpdf/43ce1cff2.pdf). Whilst these principles are not legally binding, they are respected because they find source, from international humanitarian and human rights law. Their current plight was the result of a volcanic eruption on Manam island in 2004 and a subsequent one in 2018, and sporadic eruptions since then, for example in 2022. Since then, they have been settled on the mainland of Madang in the Bogia District and also in Sumkar District.
  2. The Plaintiffs were evacuated in November and December of 2004, and resettled in five care centres. Due to conflict with the host communities two of the care centres were shut down, and they are now being housed at Asuramba, Magem and Potsdam. The 15 villages of Manam Island prior to the eruption– Dugulaba, Budua, Madauri, Waia, Jogari, Yasa, Kuluguma, Boda, Baliau, Boisa, Dangale, Kolang, Boakure, Abaria and Warisi are distributed amongst the three care centres. Asuramba and Potsdam are in the Bogia District of mainland Madang Province and Magen lies in between Sumkar District and Bogia District.
  3. Over the years, several government leaders have visited them, such as Grand Chief Sir Michael Somare when he was Prime Minister, and the previous Governors, Jim Kas and Sir Arnold Amet. They were promised that they would be resettled to a more permanent location, but that has not eventuated.
  4. The Plaintiffs have been assisted by a Catholic aid organization Caritas PNG and also a non-government organization World Vision with building schools and aid posts. The government was providing food rations, but this stopped in 2007. The United Nations did a report on their living conditions stating that their basic human needs have not been met by the government.
  5. The government, recognising the Plaintiffs plight, began facilitating their reintegration on mainland Madang through the passage of two pieces of legislation, one in 2006 and the most recent being the Manam Resettlement Authority Act 2016 (MaRa Act). This legislation establishes the Manam Resettlement Authority or MaRA, which has the primary responsibility of helping what are described as “displaced persons” (s 4, MaRA Act) to be resettled in the long term while catering for their short-term needs.
  6. Dr Boga Figa who is the current Chairman of MaRA then goes on to provide the following information about the MaRA.
  7. On the 31st of March 2016, the revised Manam Resettlement Authority bill was passed in Parliament.
  8. In August 2018, Mr. Ken Fairweather was appointed by the National Executive Council as the chairman of MaRA.
  9. On 12 March 2019 Acting Chief Executive Officer (CEO) was appointed, which was when the MaRA office was set up, initially in Port Moresby.
  10. Mr. Fairweather resigned in mid-2019 due to the national government’s lack of commitment to funding the project.
  11. Dr Boga Figa was appointed by NEC as chairman on 1 April 2020.
  12. An acting CEO, Mr. Richard Bayer was appointed in June 2020 and the MaRA office was relocated to Madang by board decision.
  13. Mr. Richard Bayer was appointed as the permanent CEO by the National Executive Council in December 2022.
  14. On 24 April 2023, Dr Boga Figa, was reappointed by the Minister for Provincial and Local Level Government Affairs as interim chairman under s 19 of the MaRA Act.

The Proceeding


  1. Feeling helpless from the inadequate assistance they have received from the Defendants, the Plaintiffs numbering over 10,000 have come to Court to seek the Court's intervention. An initial Originating Summons was later converted to a Writ of Summons with a Statement of Claim, and was filed on 4 September 2020. The Second and Fourth Defendants have filed a Defence. No issues have ben raised about the adequacy of pleadings.
  2. Alleging negligence, breach of statutory duties and violation of their human rights pursuant to ss 36(1), 37(1) of the Constitution and enforcement of their right to official information under s 51(1) of the Constitution they seek the following orders:
    1. A declaration that the Defendants have jointly or severally neglected and breached their duties towards the Plaintiffs as required under the Manam Resettlement Authority Acts of 2006 and 2016 respectfully, and in respect of 2016 Act, continue to do so, to this day.
    2. A declaration pursuant to s 57 of the Constitution that the Defendants’ lack of provision of basic government services to the Plaintiffs at Manam settlement at Bogia District, and the lack of provision of basic government services to the plaintiffs including education, health services and safe water supply within or around the care centres on Bogia mainland since their temporary resettlement in 2004 up to the present day is a breach of their human rights under s 36 of the Constitution.
    3. An order pursuant to section 57 of the Constitution directing the Third, Fourth and Fifth Defendants to give effect to the intent of the Manam Resettlement Authority Act 2016 by immediately commencing the process of identifying suitable land within Bogia district in Madang province for compulsory acquisition to enable permanent resettlement of the displaced Manam Islanders and completing the process of compulsory acquisition within a period of 12 months from the date of these orders.
    4. An order pursuant to Section 57 of the Constitution directing the Defendants jointly or severally to take all lawful steps necessary to immediately commence work on the rehabilitation of all three major care centers and in Baliau and Dugulaba and other villages on Manam and Boisa islands. Such an exercise should include repair and maintenance of water pumps installed in 2005 and the provision of roofing irons for the people and repair and maintenance of classrooms and health facilities.
    5. An order pursuant to s 57 of the Constitution for the defendants jointly and/or severally to provide monthly food rations to the care centers in Bogia District namely Mangem, Asuramba, Potsdam care centers, until permanent resettlement.
    6. An order pursuant to s 57 of the Constitution or schedule five of the Public Health Authorities Act, for the Defendants to engage a qualified medical practitioner or doctor to attend to the medical needs of the plaintiffs on a monthly basis until permanent resettlement.
    7. That the defendants appropriately equip with a vehicle and a motorized dinghy and engage a police mobile unit to police all the care centers at Manam and Boisa Islands until permanent resettlement.
    8. That the Defendants commit to make annual budgetary appropriations for school fees and other related costs for all Manam Island children from elementary to tertiary or university level institutions until permanent resettlement.
    9. An order pursuant to ss 51 and 57 of the Constitution for the defendants to provide an audited financial report of the income and expenditure of the Manam Resettlement Authority from 2004 to 2014 under the Manam Resettlement Authority Act 2006 and a further audited financial report of the income and expenditure of the authority from 2015 to 2020 under the Manam Resettlement Authority Act 2016.
    10. An order that the Defendants provide detailed Reports of funded and completed projects of the Manam Resettlement Authority since its establishment by Manam Resettlement Authority Acts of 2006 and 2016.
    11. Any other orders the court deems appropriate.
  3. The orders being sought can be categorised into breaches of the MaRA Act and breaches of the Constitution.

Justiciability of the Claim


  1. A preliminary question arises as to whether this proceeding is asking the Court to encroach into the executive function of the government and perform its role.
  2. Mr Haumu, Counsel for the Second and Fourth Defendants does not dispute the plight of the Plaintiffs but contends that the type of orders that the Plaintiff seeks, usurps the functions of the executive branch. He relies on s 99 of the Constitution which incorporates the principles of separation of powers. He says that the Courts must not assume the functions of the executive.
  3. He goes on to urge the Court to have regard to what Justice Makail observed in the case of Commander of Beon Correctional Institution v Mal (2022) SC2186:

66. Legal scholars and commentators argue that judicial activism is legislating from the bench based on discretionary power conferred on judges. It is the assertion (or, sometimes, the unjustified assertion) of the power of judicial review to set aside government acts. On the other hand, judicial restraint is the refusal to strike down such acts, leaving the issue to ordinary politics.


67. It is argued that one of the benefits derived from judicial activism is the ability of the Court to be proactive in addressing injustice in society when those charged with the responsibility have failed. The opposite of that is, those against it would argue that the Court is overstepping its boundary or crossing the line and usurping the authority of the legislative and executive arms of government.


  1. Counsel Mr Haumu submits that the relief that the Plaintiffs seeks infringes on the administrative role of the Defendants. Considering this, the best course is to refer the matter to the Supreme Court to interpret this question.
  2. On the other hand, Mr Ilaisa strongly submits that this case is premised on the enforcement of human rights. He relies on the case of Re Fish Ban (2020) N8221, where the court held that human rights are not mere expressions but are justiciable rights capable of enforcement by the National Court and Supreme Court under s 57 of the Constitution.
  3. Counsel Mr Ilaisa cites the Constitutional Planning Committee Report 1974 at para 115 and 116 of Chapter 5 to support his submissions:

115...judges and magistrates at times have to make decisions which they know may be unpopular with the government in any event, but this is part of their role as independent members of the judiciary....


116. On balance, we have concluded that the human rights provisions should be enforced by the courts...People should be able to complain of a breach of a human right and have that complaint judicially decided without undue difficulty.


  1. In my view, the Second and Fourth Defendants arguments should be rejected. What the Plaintiffs are seeking is nothing unusual. They are basically alleging negligence for breach of statutory duties of MaRA to “displaced persons,” created by legislation and importantly as Mr Ilaisa highlights, enforcing their human rights which are justiciable. These statutory duties are intrinsically connected to their human rights. The Second and Fourth Defendant does not dispute that the Plaintiffs are “displaced persons” for purposes of s 4 of the MaRA Act. They therefore have an interest and consequently “locus standi” or standing. The evidence of the living condition of the Plaintiffs is also not disputed. Ordering damages for breach of these statutory duties and human rights is straightforward, but crafting orders to prevent future breaches requires care and responsibility. The Plaintiffs are also not interested in damages. They want their rights to be realised by those charged with providing them.
  2. The final point is that MaRA Act does not state that s 4, or indeed any of its provisions are non-justiciable. If that was the intention of Parliament, it would have said so. I am therefore left with the obvious conclusion that the said provision is legally enforceable in a court of competent jurisdiction.

Manam Resettlement Authority (MaRA)


  1. The MaRA is a body corporate and can sue and be sued under its own name and style (s 3, MaRA Act). The MaRA operates under a Board. The composition of the Board is provided for under s 9 of the MaRA Act:
  2. Under s 4 of the MaRA Act, the MaRA has the following functions:

4. Functions of the Authority.


The Authority has the following functions:


(a) to identify and acquire land for the resettlement of displaced persons, including to negotiate with landowners in Anduram; and


(b) to provide services and infrastructure for the resettlement area, including building access roads, an airstrip, schools, aid posts and ensuring a safe water supply; and


(c) to provide for care centres and associated services, such as health care, education, food and a safe water supply, until such time as displaced persons are resettled; and


(d) to liaise with donors and international organisations to ensure services to displaced persons are properly co-ordinated and satisfy generally acceptable international standards; and


(c) to ensure that the human rights of displaced persons and the members of the host communities, being those people living in the Asuramba, Magem and Potsdam areas which host the care centres, are protected; and


(j) to develop a process for displaced persons to apply for permission to return to Manam Island.


  1. Section 6 of the MaRA stipulates that the Department of Provincial and Local-level Government Affairs shall monitor the performance of the MaRA. MaRA is also required to submit to the Minister for Provincial and Local Level Government Affairs every year before 31 March, its annual report. The Minister will then table MaRA’s annual report before Parliament. This is provided for under s 28 of MaRA Act. Under 24 of the same Act, MaRA is subject to the Public Finance (Management) Act 1995. This means that its accounts are subject to audit by the Auditor-General under the Audit Act 1989.
  2. Annual reports are required to be produced by MaRA pursuant to s 28 of MaRA Act (a legislation passed in 2016). Presenting an annual report by a public body ensures transparency, accountability and good governance. To the extent that there is an absence of this annual reporting, there is an absence of transparency, accountability and good governance of MaRA as there is no official record to show how MaRA is discharging its functions and spending its monetary allocation. Many of the concerns raised by the Plaintiffs not knowing how monies are spent, and what is being done, can simply be answered by producing an annual report every year as required by s 28 of the MaRA Act.
  3. There is no sworn testimony about who currently occupies the Board of the MaRA. The Board’s function under s 8 (1)(a) of the MaRA Act is to ensure the proper, efficient and economical performance of MaRA’s operations. Before this can be achieved there has to be a proper functioning Board. As I speak, I am not aware that there is in existence a Board from the evidence before me.
  4. Under s 14(2) of the MaRA Act, the Board is to meet once every four months.
  5. The chief executive officer plays an important role. The chief executive officer is responsible for the day-to-day management of the MaRA and the implementation of its policies and decisions. Mr Richard Bayer is currently occupying this role. The chief executive officers is to implement policies and decisions of MaRA (s 22(2), MaRA Act).

Findings of Facts


  1. The Plaintiffs tendered 37 affidavits (Exhibit P1 to P37). Dr Boga Figa the interim Chairman of MaRA gave oral and documentary evidence (Exhibit D1 and D1), for the Second and Fourth Defendant.
  2. The specific evidence provided to support the Plaintiffs’ claim, which I summarise, are set out hereunder:
  3. Both Bruce Sila and Dr Boga Figa state that substantial sums of public monies have been spent on the IDPs of Manam Island. It is also clear from their evidence that the monies that have been spent for the displaced persons of Manam Island have never been audited despite the fact that MaRA is subject to the Public Finance (Management) Act. I will accept the evidence of Dr Boga Figa on the question of the amounts of money that have been appropriated to MaRA considering that he is the Chairman of the Authority. I have summarised in the table below his evidence on the public funds earmarked for MaRA:
Year
Appropriated
Received
2019/2020
K17m
K1.5m
2020
K8m
K2m
2021
K2m
K2m
2022
K5m
K3m
2023
K15m
Nil

  1. As can be seen, from 2019 to 2023, MaRA has received K8.5m from a promised allocation of K47m. The first question is what the K8.5m has been spent on, and secondly if it is enough? These are serious questions which demand an answer because these monies have never been audited and there is no annual reported provided under s 28 of the MaRA Act.
  2. The government despite spending a lot of money has not achieved the objectives of the MaRA. The Plaintiffs allege that one of the main causes of the Defendants’ failure, has been its lack of commitment to comply with its statutory duties. The affidavit of Dr Boga Figa contains a damning report of an audit conducted by the Department of Finance which found that K6m earmarked for the MaRA was paid to the Madang Provincial Government and has gone missing. It is not my task to find out how that money has gone missing except to say that the displaced persons of Manam Island have not benefited from it.
  3. The following findings (without contest) can therefore be made about the Plaintiffs’ living conditions:
  4. I consider these findings against the various causes of action pleaded by the Plaintiffs.

Breach of Statutory Duty


  1. The cause of action for breach of duty alleged by the Plaintiffs under the MaRA Act, after considering authorities such as Goma v Protect Security & Communication Ltd (2013) SC1300 is one in torts, and is classified as breach of statutory duties. The Plaintiffs also claim negligence under common law, but I am not satisfied that the duty of care in Common Law cum Underlying Law (see Underlying Law Act 2000) was adequately pleaded in the Statement of Claim for me to discern a duty of care. I will as a result consider the claim as one for breach of statutory duty. I note that pleading negligence and breach of statutory duty can be pleaded in the same cause of action (Woolcott v Nivani Ltd (2023) SC2335).
  2. In the Goma case the headnotes provide a guide as to how to determine the existence of this cause of action for breach of statutory duty. I can do no better than to quote here the majority judgment of former Chief Justice Injia and Justice Cannings in headnote (2) as instructive on the applicable elements of a cause of action founded on breach of statutory duty:

(2) The elements of the tort of breach of statutory duty are that: (a) a statute imposed an obligation on the defendant; (b) the obligation was breached by the defendant; (c) the purpose of the statute was to protect a particular class of persons; (d) the plaintiff was a member of that class of persons; (e) the plaintiff suffered damage as a result of the breach; and (f) the Parliament intended to create a private right of action for breach of the statutory obligation.


  1. The question is now whether each of these elements have been satisfied. I consider each one of them, to answer this question.
    1. A statute imposed obligation on the Defendants
  2. The first element is satisfied from s 4 of the MaRA Act. The MaRA, under s 4 of the MaRA Act has the following functions:

4. Functions of the Authority.


The Authority has the following functions:


(a) to identify and acquire land for the resettlement of displaced persons, including to negotiate with landowners in Anduram; and


(b) to provide services and infrastructure for the resettlement area, including building access roads, an airstrip, schools, aid posts and ensuring a safe water supply; and


(c) to provide for care centres and associated services, such as health care, education, food and a safe water supply, until such time as displaced persons are resettled; and


(d) to liaise with donors and international organisations to ensure services to displaced persons are properly co-ordinated and satisfy generally acceptable international standards; and


(e) to ensure that the human rights of displaced persons and the members of the host communities, being those people living in the Asuramba, Magem and Potsdam areas which host the care centres, are protected; and


(f) to develop a process for displaced persons to apply for permission to return to Manam Island.


  1. A “function,” as defined by the English Cambridge Dictionary (https://dictionary.cambridge.org/dictionary/english/function) is, “the natural purpose (of something) or the duty (of a person)...”.
  2. Section 4 imposes certain obligations upon the MaRA to comply with for displaced persons. Obligations are actions, the bearer of the obligation is required to perform. The terms that s 4 employs, such “identify,” “provide,” “liaise,” “ensure,” and “develop” are verbs or action words requiring the bearer of the obligation to perform. In my view s 4 imposes several duties on MaRA to perform for displaced persons.

(b) the obligation was breached by the defendant


  1. From all the evidence that has been tendered before me, since the passage of the MaRA Act, the duties imposed by s 4 to displaced persons, has been breached by the First, Second and Fourth Defendants in the following manner:
  2. I have considered the functions of MaRA under s 4, and weighed the evidence to reach the above findings.

(c) the purpose of the statute was to protect a particular class of persons


  1. To determine this element, the critical term in s 4 is “displaced persons.” Whilst the legislation does not define “displaced persons,” I find help from the definition of Internally Displaced Persons or IDPS under the United Nations Guiding Principles on Internal Displacement, which defines IDPs as:

"[...] persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized state border."


  1. It is clear from the intention and spirit of the legislation and the United Nations Guiding Principles on Internal Displacement that s 4 of the MaRA Act classifies persons who have been obliged to flee from Manam Island from the volcanic eruption in 2004 and resettled on the mainland, Madang Province, are displaced persons. In the words of the United Nations Guiding Principles on Internal Displacement they are “Internally Displaced Persons” or “IDPs.”
  2. The duty therefore applies to a class of persons, “displaced persons,” and this therefore settles the third element of this cause of action.

(d) the plaintiff was a member of that class of persons


  1. It is not disputed that each of the Plaintiffs are “displaced persons,” as referred to in s 4 of the MaRA Act. The Defendants do not oppose the Plaintiffs being classified as “displaced persons.” This element is therefore satisfied.

(e) the plaintiff suffered damage as a result of the breach


  1. In my view the main consideration here is the lack of identification of land for resettlement. From the evidence, much of the damages suffered, such as conflict with the host communities arises as a result of this failure to provide land for the displaced persons.

(f) Parliament intended to create a private right of action for breach of the statutory obligation.


  1. As in Goma, this is the main issue. To determine whether this element has been satisfied, I again apply the considerations from the Goma case. In headnote (4), the Supreme Court stated the following considerations to determine this issue:

(4) In determining whether there was such a parliamentary intention the Court is required to have regard to the purpose of the statutes and the principles of statutory interpretation provided for by the Constitution, some of which are unique to Papua New Guinea. It must: give effect to the National Goals and Directive Principles (Constitution, s 25), the Basic Rights, including the right of all persons to the full protection of the law (Constitution s 37) and the Basic Social Obligations (Constitution s 63), exercise the judicial authority of the People, which entails upholding and enforcing the Rule of Law (Constitution, s 158(1)) and give paramount consideration to the dispensation of justice (Constitution, s 158(2)).


  1. The purpose of the legislation is to protect a group of vulnerable members of society. For example, s 4(e) of the MaRA Act states that one of the functions of MaRA is the protection of the human rights of displaced persons and the members of the host communities, being persons living in Asuramba, Magem and Potsdam care centres. Human rights are enforceable in court, (ss 57 and 58 of the Constitution). In my view Parliament intended to protect the human rights of the Plaintiffs and give effect to the National Goals and Directive Principles and Basic Social Obligations when it passed the MaRA Act. I will discuss about the consideration of the National Goals and Directive Principles in the interpretation and enforcement of human right in due course. For now, it is sufficient for me to say that Parliament intended to create a private cause of action in private law as it will give effect to the National Goals and Directive Principles and Basic Social Obligations.
  2. The overall conclusion is then that the Plaintiffs have established a cause of action in for breach of statutory duty against all Defendants. MaRA has breached its statutory duty. The breach of the duty extends to the State from its lack of commitment and funding. The failure of Madang Provincial Government to remit K6m it received for the displaced persons, is also a breach of this duty. Consequently, all the Defendants have breached the statutory duty imposed by s 4 of the MaRA Act either directly or indirectly.
  3. The next question is whether there is a violation of the Plaintiffs’ rights under ss 36 and 37(1) of the Constitution. The plaintiffs have also sought to enforce their rights under s 51(1) of the Constitution.

Section 36. Freedom from inhuman treatment.


  1. Section 36(1) of the Constitution states:

36. Freedom from inhuman treatment.


(1) No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.


  1. In Konori v Jant (2016) N5868, the National Court interpreted the Supreme Court case of SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314 as holding that for a person to be treated inhumanly under s 36(1) of the Constitution two conditions must be met:
  2. I follow the approach in Konori in the consideration of the facts of this case to determine if s 36(1) of the Constitution had been breached.
  3. Firstly, I find that the Defendants’ failure to permanently resettle the Plaintiffs from 2004 to 2024, resulting in the loss of lives, livelihood and culture, exacerbated further by the absence of a clear policy and funding commitment stating how and when they intend to resettle the IDPs was never consented to by the Plaintiffs. Secondly, the effect of the Defendants’ lack of commitment to discharging their legal responsibility to the Plaintiffs had the effect of treating the Plaintiffs, being internally displaced persons as less than human and continues to be so. Whether the Defendants expressly intended it or not, is immaterial, because the hopeless situation of the Plaintiffs being categorized as internally displaced persons is public knowledge, such that any reasonable person in the position of the Defendants would have known or ought to have known that if they did not resettle the Plaintiffs within a reasonable period of time, they would have been exposing Plaintiffs to a life less than a human, and in fact this was what happened to them.
  4. The Plaintiffs aptly relies on the case of In the Matter of Enforcement of Basic Rights Under the Constitution Section 57 (2007) N2969. In that case the Court ordered for inhumane police cells to be closed, and the detainees removed. Here as the Plaintiffs relevantly submits, “they are trapped in the limited area of the care centres,” because:
  5. This violation is amplified when I consider the National Goals and Directive Principles. Under s 25(3) of the Constitution, I am required to take the National Goals and Directive Principles fully into account when I am applying the law, albeit the Constitution of Papua New Guinea. Buttressing this Constitutional imperative is s 32 of the Constitution, ‘Right to freedom’:

s 32, ‘Right to Freedom.’


(1) Freedom based on law consists in the least amount of restriction on the activities of individuals that is consistent with the maintenance and development of Papua New Guinea and of society in accordance with this Constitution and, in particular, with the National Goals and Directive Principles and the Basic Social Obligations. (Emphasis provided).


  1. Application by Ireeuw, Wawar, Ap, and Wakum [1985] PNGLR 430 held that s 32 is an interpretive provision of substantive human rights requirements of the Constitution. In this vein, the treatment of the people of Manam over the last 20 years runs contrary to the founding philosophy of this country. Their treatment extinguishes the light that the National Goals and Directive Principles is to shed on the development path of Papua New Guineans. What is germane to their inherent human dignity as Papua New Guineans is what is stated in the National Goals and Directive Principles. In this connection, their inherent human dignity is abused in the following manner:
  2. I have also considered the United Nations Guiding Principles on Internal Displacement. There are 30 principles enunciated there. I have had regard to Principle 18, which states that all internally displaced persons have the right to an adequate standard of living, which includes essential food and potable water, basic shelter and housing, appropriate clothing and essential medical services. This Principle goes on to state that special effort should be made for women to be involved in the planning and distribution of basic supplies. Principle 23 talks about the right to education. Principle 28 requires national authorities to facilitate integration and resettlement. It is obvious from the evidence that these principles were not observed by the Defendants.
  3. I am therefore persuaded on the balance of probability that all Defendants have breached the Plaintiffs’ rights under s 36(1) of the Constitution. The liability of the Third Defendant is additionally occasioned by its failure to remit to MaRA the K6m it received from the First Defendant, that was due to the displaced persons of Manam.

Section 37. Full protection of the law


  1. Section 37(1) of the Constitution states the following:

37. Protection of the law.


(1) 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.


  1. I find that the Plaintiffs have a cause of action against the Defendants for breach of s 37(1) of the Constitution. The Supreme Court in Amaiu v Yalbees (2020) SC2046 stated the following which I apply:

121. Section 37(1) of the Constitution creates a right to protection of the law. It is not limited to cases in which the person is in custody or charged with an offence. It is a substantive right standing by itself and capable of being enforced: In Special Reference Pursuant to Constitution Section 19; Section 365 of the Income Tax Act (1995) SC482.


  1. The Plaintiffs were entitled to benefit from the services of government as provided for by s 4 of MaRA Actm a law. Instead, they have been met what is contrary to s 4 as I have found above. The Plaintiffs have therefore not enjoyed the full protection of the law under s 37(1) of the Constitution.
  2. Again, the First Defendant is liable for the inadequate funding and lack of commitment to supervise MaRA to ensure it fulfills its functions. The Second and Fourth Defendant being directly charged with implementing s 4 of the MaRA Act has equally failed its responsibilities. And the Third Defendant has failed to remit K6m due to MaRA, which it would have used to carry out its responsibilities.
  3. The end result is that all the Defendants have contributed to violating the Plaintiffs’ right to full protection of the law guaranteed by s 37(1) of the Constitution.

Section 51, “Right to Freedom of Information.”


  1. The Plaintiffs claim that they do not know how the money allocated to them every year has been used by the Second, Third and Fourth Defendants. They were never advised of how the money was used on the proposed projects relating to land acquisition, establishment of government services and any other projects in the their interests. The Plaintiffs assert that they have a right to this information, under s 51 of the Constitution.
  2. Section 51 of the Constitution states:

51. Right to freedom of information.


(1) Every citizen has the right of reasonable access to official documents, subject only to the need for such secrecy as is reasonably justifiable in a democratic society in respect of—


(a) matters relating to national security, defence or international relations of Papua New Guinea (including Papua New Guinea's relations with the Government of any other country or with any international organization); or


(b) records of meetings and decisions of the National Executive Council and of such executive bodies and elected governmental authorities as are prescribed by Organic Law or Act of the Parliament; or


(c) trade secrets, and privileged or confidential commercial or financial information obtained from a person or body; or


(d) parliamentary papers the subject of parliamentary privilege; or


(e) reports, official registers and memoranda prepared by governmental authorities or authorities established by government, prior to completion; or


(f) papers relating to lawful official activities for investigation and prosecution of crime; or


(g) the prevention, investigation and prosecution of crime; or


(h) the maintenance of personal privacy and security of the person; or

(i) matters contained in or related to reports prepared by, on behalf of or for the use of a governmental authority responsible for the regulation or supervision of financial institutions; or


(j) geological or geophysical information and data concerning wells and ore bodies.


(2) A law that complies with Section 38 (general qualifications on qualified rights) may regulate or restrict the right guaranteed by this section.


(3) Provision shall be made by law to establish procedures by which citizens may obtain ready access to official information.


(4) This section does not authorize—


(a) withholding information or limiting the availability of records to the public except in accordance with its provisions; or


(b) withholding information from the Parliament.


  1. To determine the Plaintiffs claim I apply the principles in Mesulam v Joku (2023) SC2499. In that case the Supreme Court held the following (as is applicable to this case):

(1) Section 51 of the Constitution gives every citizen other than a citizen who has dual citizenship the right of reasonable access to “official documents”. The first question to ask where citizens seek access to documents in the possession, custody or control of a governmental body, is whether the documents are “official documents”.


(2) If the documents are official documents, citizens have a right of reasonable access to them unless the documents, or any particular document, fall within one or more of the prescribed categories in ss 51(1)(a) to (j) and there is a need for “such secrecy as is reasonably justifiable in a democratic society”.


(3) The onus of proving that a document falls within one or more of the prescribed categories and that there is a need for secrecy in regard to the document rests on the person who is seeking to deny access to the document.


  1. The Plaintiffs are citizens. The documents the Plaintiffs are asking for are official documents. They relate to information maintained by a body created by statute for a public purpose.
  2. None of the exceptions stated in s 51(1)(a) to (j) of the Constitution operates against the enforcement of this right. The information the Plaintiffs request would have been provided by MaRA in its annual reports under s 28 of the MaRA Act. I am therefore satisfied that I should order that all information relating to how MaRA has spent public funds under its stated functions should be provided to the Plaintiffs. I will however go back as far as 1 January 2019 to 31 December 2023 as official records are kept for a maximum of seven (7) years as far as I am aware.

Remedy


  1. What is the appropriate remedy to be ordered against the Defendants as I have found that breaches of the MaRA Act, especially s 4 and violation of their human rights.
  2. I first have regard to s 22, ‘Enforcement of the Constitution’ where the Constitution states:

22. Enforcement of the Constitution.


The provisions of this Constitution that recognize rights of individuals (including corporations and associations) as well as those that confer powers or impose duties on public authorities, shall not be left without effect because of the lack of supporting, machinery or procedural laws, but the lack shall, as far as practicable, be supplied by the National Court in the light of the National Goals and Directive Principles, and by way of analogy from other laws, general principles of justice and generally-accepted doctrine. (Emphasis in bold added)


  1. Section 57, ‘Enforcement of guaranteed rights and freedoms’ at subsection (3) then addresses the type of orders that may be appropriate to make to give effect to the human rights of the plaintiffs:

(3) 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).


  1. After s 57(3), s 57(5) of the Constitution continues:

(5) Relief under this section is not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, but may, if the court thinks it proper to do so, be given in cases in which there is a reasonable probability of infringement, or in which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement.


  1. In my view the combination of these provisions defeats the argument that Mr Haumu advances that under the doctrine of separation of powers, established by s 99 of the Constitution I cannot encroach onto the function of the executive branch. Separation of powers is in principle only, and subject to more specific provisions of the Constitution. In any case, the orders that I will make, simply enforces the existing legislation and Constitutional dictates.
  2. There has been a violation of the Plaintiffs’ rights as I have found, and in the words of s 22 which is in mandatory terms, as the word “shall” is used, the breach must not be allowed to continue, that is, “be left without effect...”. As it appears to me, an award of damages will not address the long-term problems of the Plaintiffs. The type of order that I should make in this case must address the lack of commitment by the National Government to the MaRA as regards funding and supervision, ensuring MaRA performs its functions under its enabling legislation. MaRA must have a policy with fixed timeframes and fully costed to fulfill s 4 of the MaRA Act. Since the Department of Provincial and Local Level Government has not shown any interest to oversee the work of MaRA (demonstrated by their lack of interest in this proceeding, despite the State being named as a party), the Court will have to step in, in the interim. The executive branch has failed its responsibilities to the Plaintiffs in the last 20 years, and may well continue into the future if there is no intervention. This in my view, is an appropriate case for the Court to give effect to the rights of the Plaintiffs which s 22 of the Constitution enjoins me to. Considering the on-going infringement of the Plaintiffs’ rights, it is also necessary to make appropriate orders under s 57(5) of the Constitution, to prevent, if not at least to limit future infringement of the Plaintiffs’ rights.
  3. In so far as the hopeless conditions of the Plaintiffs are concerned, I found what the court said in Sam Koim v. Peter O’Neill & Ors (2015) N6558 apt:

78. In a democratic system of government, the doctrine of separation of powers is fundamental to the maintenance and survival of democracy. Governmental or State powers must be divided and kept separate amongst the three arms of government. Each arm must be weary and strive not to encroach on the powers of the other. At the same time there is a duty of each arm of government to check on the other’s exercise of powers. An effective system of check and balances within the democratic system of government are key factors to the maintenance and survival of democracy.


  1. The court has a role to play in the effective system of check and balances. As to what this amounts to, can only be determined on a case-by-case basis. This case is an exceptional one, affecting the most vulnerable in society. It calls for a firm, fair and effective intervention by the court to prevent ongoing breaches.
  2. There were orders that were sought regarding provision of food on a monthly basis. The food programme stopped in 2007. The population has increased since then. It may be unworkable to order the Defendants to provide food on a monthly basis. What should be done, should be that the Third Defendant commit to developing programmes that provide for food security for displaced persons.
  3. In-addition to proper management, there must be adequate funding. The previous Chairman of MRA, Mr Ken Fairweather resigned as Chairman of MRA as there was inadequate funding. Whilst there have been millions of Kina, spent for the Manam Island people, Bruce Sila the lead Plaintiff says in his affidavit filed on 4 January 2019 that there is nothing to show for it.
  4. Dr Boga Figa states that monies that were budgeted for MRA except for 2021 have been partly received, or not at all.
  5. Given this, I agree with the Plaintiffs’ submission that the National Government has not shown genuine commitment to the disaster stricken Manam Islanders in terms of funding and political will, to resettle the Plaintiffs within the shortest possible time.
  6. The most just interim measure to address the plight of the people is to have the State pay an upfront payment of K6m to MaRA as part of its commitment to meeting its outstanding obligations to the said Authority. I cannot see how the total neglect of the Plaintiffs by the Defendants can be addressed if I do not make this order. The long suffering of the Plaintiffs underscores the need for urgency and the necessity of this order. If one sees this as judicial activism, then in the same breath, one can also see it as giving paramount consideration to the dispensation of justice under s 158 of the Constitution.
  7. The State must also be clear as to the funding of the Manam resettlement efforts. There is established the MaRA under the 2016 legislation, that is the MaRA Act. It has a Board, a Chief Executive Officer and staff and a legislation to comply with and policies to formulate and implement. Future funding by the National Government must be made to the MaRA and not to Madang Provincial Government.
  8. It is also surprising that the funds made available for the Manam Resettlement exercise has not been audited. Section 24 of the MaRA Act states that Part VIII of the Public Finances (Management) Act 1995 applies to MaRA. Under s 63 of Part VIII, MaRA as a public body is required to be audited under the Audit Act 1989. The evidence of Dr Boga Figa does not show that the finances of MaRA has been audited by the Auditor-General. The Auditor-General is therefore requested by this Court to perform its statutory functions in relation to MaRA.

Orders and Costs


  1. I will order that the First Defendant pays for the Plaintiffs costs, to be taxed if not agreed. It is also appropriate that the First Defendant pays for the Second and Fourth Defendants costs since the First Defendant showed no interest in this very important proceeding affecting lives of many vulnerable citizens of Papua New Guinea.
  2. Having said all that, I make the following orders pursuant to ss 22, 57(3) and (5) of the Constitution bearing in mind the National Goals and Directive Principles and the United Nations Guiding Principles on Internal Displacement:
    1. It is declared that the Defendants have jointly or severally breached their duties to the Plaintiffs as required under the Manam Resettlement Authority Acts of 2006 and 2016 respectfully, and in respect of 2016 Act, continue to do so.
    2. It is declared that the Defendants’ lack of provision of basic government services to the Plaintiffs including education, health services and safe water supply within or around the care centres on Bogia mainland since their temporary resettlement in 2004 up to the present day is a breach of their human rights under s 36(1) and s 37(1) of the Constitution.
    3. To prevent future breaches of the Plaintiffs rights under ss 36(1) and 37(1) of the Constitution, the Defendants shall give effect to s 4(a) of the Manam Resettlement Authority Act 2016 by immediately commencing the process of identifying suitable land for compulsory acquisition to enable permanent resettlement of the displaced Manam Islanders and commit to completing the process of compulsory acquisition by 3 September 2025.
    4. As an interim measure until permanent resettlement, the Second and Fourth Defendants are ordered to develop a policy within six (6) months from today for implementation thereafter, in consultation with the recognised leaders of the displaced persons, the Department of Provincial and Local Government Affairs, the Bogia District Development Authority, the Madang Provincial Government, relevant non-government organisations and the United Nations, to implement s 4 of the Manam Resettlement Act 2016 to provide for food security, health services, rehabilitation of care centres, education of the children, and protection of their human rights, and a copy of the report shall be presented by the Chief Executive Officer of the Fourth Defendant to this court by or before 3 March 2025.
    5. The Defendants are ordered jointly and/or severally to take all lawful steps necessary to give effect to s 4(c) of the Manam Resettlement Authority Act 2016 by immediately commencing work on the rehabilitation of water supplies to all three major care centres and in Baliau and Dugulaba and other villages on Manam and Boisa islands, including repair and maintenance of water pumps installed in 2005.
    6. The Second and Fourth Defendants are jointly and/or severally ordered to give effect to s 4(c) of the Manam Resettlement Act 2016 by entering into a memorandum of agreement with the Department of Health to provide adequate health services to attend to the medical needs of the Plaintiffs monthly until permanent resettlement.
    7. The Defendants are jointly and severally ordered to give effect to s 4(e) of the Manam Resettlement Authority Act 2016 by entering into a memorandum of agreement with the Royal Papua New Guinea Constabulary to provide policing to all the care centres in Mangem, Asuramba, and Potsdam until permanent resettlement and adequately police Manam and Boisa Islands.
    8. The Second and Fourth Defendant shall forthwith contact the office of the Auditor General and arrange for the audit of its accounts on an annual basis in compliance with s 24 of the Manam Resettlement Authority Act 2016 under the Audit Act 1989.
    9. Pursuant to s 51(1) of the Constitution, the Defendants shall provide to the Plaintiffs detailed reports of funded and completed projects by the Manam Resettlement Authority from 1 January 2019 to 31 December 2023, within a reasonable period.
    10. If there is no Board of Manam Resettlement Authority in existence at present, the authorities listed under s 9 of the Manam Resettlement Authority Act 2016 are ordered to facilitate the appointment of the Board of the Manam Resettlement Authority forthwith.
    11. The First Defendant, that is the State, through its servant and agents, including the Secretary for Finance shall endeavour to identify as soon as is practicable monies lawfully available within the revenue of the Independent State of Papua New Guinea that has been appropriated to the Manam Resettlement Authority from 1 January 2019 to 31 December 2023, and pay K6m as part payment of fulfilling their outstanding commitment, and the money shall be paid to the National Court Trust account and will be released by the National Court to the Manam Resettlement Authority when its Board is confirmed.
    12. If the K6m in term 11 of these orders is not available within six months from the date of these orders, the Secretary for Finance shall appear before the National Court in Madang on Monday 3 March 2025 at 930am and provide explanation, as to when it will be reasonable to expect this money.
    13. Dr Boga Figa shall continue to perform the role of Chairman of the Manam Resettlement Authority until otherwise decided by the appointing authority, that is the National Executive Council.
    14. The Department of Provincial and Local Level Government Affairs shall ensure that Manam Resettlement Authority provides its annual report in compliance with s 28 of the Manam Resettlement Authority Act 2016.
    15. The plaintiffs shall forthwith serve a copy of this order made today on all relevant persons who are ordered to comply with it:
      • The office of the Prime Minister;
      • The Secretary of the National Executive Council;
      • The Minister for Provincial and Local Level Government Affairs;
      • The Secretary for the Department of Provincial and Local Level Government Affairs;
      • The Secretary for Finance;
      • The Governor of Madang Province;
      • The Provincial Administrator of Madang Province;
      • The Member for Bogia Open in the National Parliament;
      • The District Administrator of Bogia District Development Authority;
      • The Auditor-General;
      • The Commissioner of Police and the Madang Provincial Police Commander; and
      • The Secretary for the Department of Health.
    16. The State, that is the First Defendant shall pay the Plaintiffs costs and the Second and Fourth Defendants costs of these proceedings, to be taxed if not agreed.
    17. The time for the entry of these orders is abridged to the date of settlement before the Assistant Registrar, which shall take place forthwith.

Judgment and orders accordingly.
________________________________________________________________
Public Solicitor: Lawyer for the Plaintiffs
Chesterfield Lawyers: Lawyers for the Second and Fourth Defendant

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