Papua New Guinea Law Reports - 1985
[1985] PNGLR 48
N501
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
UNIVERSITY OF PAPUA NEW GUINEA
V
UME MORE, FABIAN POK, LEVI TILTO, WANDI OSCAR YAMULA, PAUL PIRU, POWES PARKOP AND MEMBERS OF THE STUDENTS’ REPRESENTATIVE COUNCIL AND ALL THOSE STUDENTS NOW ENROLLED AT THE UNIVERSITY OF PAPUA NEW GUINEA WHO HAVE NATIONAL SCHOLARSHIPS, OTHER THAN MEDICAL STUDENTS
Waigani
Bredmeyer J
1 March 1985
4-6 March 1985
INJUNCTIONS - To restrain conduct - To restrain breach of basic rights - University students - Disruption to lectures - Barricading entrance - Restricting entry - Breach of basic rights - Restraining orders justified - Constitution, ss 32, 37, 46, 52, 57.
CONSTITUTIONAL LAW - Basic rights - Protection and enforcement - Powers of court - Court may act on own initiative - Appropriate orders - Restraining breach of - University students - Disruption to lectures - Barricading entrance - Restricting entry - Students banned from University and ordered to home provinces - Constitution, ss 32, 37, 46, 52, 57.
Certain students of the University of Papua New Guinea, over a period of ten days, forcibly disrupted lectures, erected and manned barricades at the main entrance road and restricted entry thereto to those of their own choice. On an application for an injunction restraining such conduct:
Held
(1)      The conduct of the students in forcibly disrupting lectures by barricading the entrance and restricting entry justified the making of restraining orders.
(2)      The conduct of the students violated basic rights of the students and lecturers of the University and the public under the Constitution; the right to freedom (s 32), the right to protection of the law (s 37), the right to freedom of expression (s 46), the right to freedom of movement (s 52).
(3)      The power of the court to enforce guaranteed rights and freedoms under the Constitution, s 57, is a wide power which may be exercised by the court on its own initiative and in any manner that is appropriate to the circumstances.
(4)      In the circumstances, the court should order that the students be banned from the University campus for the rest of the year, that the State pay for and send the students to their home provinces and to secure due performance the students be imprisoned for not more than five days.
Summons
This was an application for an interim injunction which upon the hearing of evidence was dealt with by his Honour as a substantive application.
Counsel
R Thompson and D Roebuck, for the plaintiff.
J Pakau, for the defendants.
B O Emos, for the Principal Legal Adviser.
6 March 1985
BREDMEYER J: This is an application by the University seeking orders as per a draft handed up. It began as an application for an interim injunction but I agree that as evidence has now been heard on both sides and the damages which were claimed in the writ of summons are not now sought, it is proper to regard it now as a substantive application. Evidence has been put before me by the University and the student defendants as to past events over the last ten days, as to what has happened at the University. The University evidence is that lectures were forcibly disrupted on Monday, 25 February and then on Thursday, 28 February, barricades were erected and manned by the students and that ingress and egress to the University was restricted to only those whom the students would let through. Much but not all of that evidence is denied by the defendants. I have to make findings of fact on what has happened and decide from that whether those acts or similar acts are likely to occur in the future. In addition to that I can infer what is likely to happen in the future at the University from what the students have said of their further intentions.
CREDIBILITY OF WITNESSES
I thought all the University witnesses were good, answered questions truthfully and were not damaged in cross-examination. Their evidence was brief. I remind myself that Mrs Wilson was not called as a witness at all and that it is only the uncontested parts of her affidavit which are in evidence. I thought the defendant, Mr Ume More, in many ways answered questions truthfully and with a good demeanour. I was impressed by him for example when he told me without hesitation what their next secret strategy was. On the morning of Monday this week, 4 March, he was in the witness box and he said he attended a forum held at the University that morning just a few hours before. He said he addressed the forum, he was asked a series of questions about what had happened at the forum.
“Q.     Did you make any recommendations to the meeting? A. Your Honour I can’t remember (the witness smiles).
Q.       Did you tell the meeting you had a plan of action? A. I can’t remember that.
Q.       Did you tell them whether the strike was on or off? A. Last night I told the forum the strike was still on.
(I thought that answer was evasive; he was asked about that morning.) Question repeated.
Q.       Did you tell the forum whether the strike was on or off? A. I told the students if they want to go to classes, it was up to them but as far as the majority is concerned the strike is still on.”
I thought those answers severely damaged his credit.
On weighing his evidence against that of Mrs Wilson, that is the uncontested parts of her affidavit, and the evidence of Dr Brash, I prefer that of Mrs Wilson and Dr Brash as to what happened on Monday, 25 February. I know that Dr Brash had a poor vantage point to see and to hear what was going on at the main lecture theatre but in cross examination his recollection remained firm that it was indeed Mr More who said the words ‘I don’t want to have to use violence’. I believe him. I find on the balance of probabilities as a fact that Mrs Wilson’s lecture was forcibly disrupted and prevented by Mr More and his friends. I find as a fact that the dialogue between the people went like this:
“(Mr More) Don’t you know there is a boycott of classes? (Mrs Wilson) Yes, you have your rights but the students here also have rights.
(Mr More) I don’t want to use violence.”
MR LEVI TILTO
Good demeanour. Nothing adverse against him about the way he gave his evidence. I have to weigh up his evidence on an incident against the evidence of Dr Pernetta. They both gave evidence on the same incident which occurred on Monday, 25 February between 9.00 am and 10.00 am in the science block. Dr Pernetta’s evidence is as follows:
“I was walking between the University Forum and the Science Faculty, I saw a group of students walking along the corridor of the Science Faculty. I then saw the students break up into pairs and I watched them walking along the corridor opening each door and looking into the lecture and tutorial rooms. I recognized most of the students by sight that they were not science students. No classes were taking place in the science 2 building at that time. I followed two of the students down the upper corridor after they had finished checking each room, they turned around and came back down the corridor towards me. I was standing next to a cupboard about half-way along the corridor. I asked the students what they were doing and they said they were checking to make sure no classes were taking place. I asked them if they were science students and they said ‘No.’ One of the group asked me if I was a lawyer and I said, ‘No, I was Dean of Science’. I then said I was issuing an instruction under the Students Discipline Statute that they should leave the science building and not return. One of the students whom I now know to be Levi Tilto, and whom I now know to be a member of the strike committee, became extremely angry and tried to push past me. He abused me by saying among other things he was not taking any orders from me, that this was his country and I should not interfere with student matters. He continued to abuse me, to work himself in such a state that I believed that he was about to hit me. He thumped the cupboard against which I was standing and continued yelling.”
I infer from that evidence that Mr Tilto was trying to push past him into the science block. Mr Tilto’s evidence is different. It is that he denies saying anything abusive, he denies getting very angry, he says he was endeavouring to get away from the science block when forcibly stopped by Dr Pernetta putting out his arms. I infer from his evidence that he was trying to get out of the science block. The evidence is that Mr Tilto is a strike leader and I say that because of the latter evidence that he discussed this incident with the Vice Chancellor shortly afterwards and that he attended the meeting held that day of the Academic Board and other strike leaders.
What is the probability that he was trying to push past to get out of the science block or trying to get into the science block? The probabilities favour, I think, the view he was trying to get into the science block. He was trying to push past Dr Pernetta to get into the science block. He said that he was not extremely angry at Dr Pernetta and he could not recall if he shouted. The probabilities as to what happened in my view are that he was angry and that he did shout. The probabilities are that he said ‘I am not taking orders from you, this is my country (or our country) and you should not interfere in student matters’. I can readily believe that Mr Tilto confronted by an authority figure like the Dean of Science, who is also a European, and having being stopped from going into the science block would react like that. It is understandable that the man should react like that. I find that the fact is he did say that.
Mr Tilto, a law student, gave evidence that his motive for going into the science block was as follows: he heard that a staff member had complained that some students had tried to use force to stop classes and he thought that this was wrong. He was going around to check that no force was being used. I do not believe that, I find that explanation disingenuous. The probabilities are, and I find this a fact, that he was going around opening the doors in the science block to check to see that no lectures or tutorials were being held in defiance of the ban.
MR WANDI OSCAR YAMULA
I liked Mr Yamula. He had a confident, colourful way of giving evidence. He referred to himself twice I think as a “big mouth”. I think he was being unkind to himself. From his demeanour, physical strength, and confidence I can readily accept his evidence that he is a big man and a natural leader. His credibility was severely damaged under cross-examination. He gave a number of “smart” answers which struck me as untrue, insincere and evasive. Most of the answers which I thought fell into that category drew amused smiles and silent chuckles from the students sitting in the back of the Court. For example he was asked this:
“Q.     If I told you that the University Council run the University with the Vice Chancellor as its Executive Officer, would that surprise you?
A.       It doesn’t surprise me because I don’t know.
Other answers in the same vein were:
Q.       Do you understand what an undertaking is? A. I speak Pidgin fluently and that is an English word and I don’t know the meaning of undertaking.
Q.       If you sign a piece of paper with English on it and it is explained to you that this is a promise that you were making, do you feel that it is binding on you? A. Can you re-phrase that question?
(That is an evasive answer to a question which I consider he clearly understood).
Q.       Have you ever stood for elective office? A. I don’t remember.
(I regard that answer as evasive. I think he should remember whether he stood for elective office or not.)
Q.       Who is Chairman of the Strike Steering Committee? A. I wouldn’t know, it’s within the SRC Steering Committee himself.
(My comment I think he would know. There is abundant evidence that he is one of the leaders of the striking students.)”
In answer to another question he said the whole student body makes up the strike committee. I thought that answer evasive, unconvincing and non-truthful. Overall I thought the witness of poor credit not to be believed on many aspects of his evidence. I find as a fact on Tuesday, 26 February in the afternoon Mr Yamula was the leader of the group of striking students who called on Mr Keith MacLeod who was conducting a laboratory class with fifteen out of his usual fifty students. Mr Yamula was the leader of a group of non-course students. He called Mr MacLeod outside and he had this conversation with him.
“(Mr MacLeod) We are conducting a laboratory class which has been agreed to by the SRC. (Mr Yamula) No, we have agreed to nothing, the Vice Chancellor has no right to tell us what to do. You are only here because of us.”
The intention of that visit was to get Mr MacLeod and the other tutors to stop the class. I have no evidence before me whether they succeeded or not.
I find as a fact that the defendants and others forcibly stopped Mrs Wilson’s lecture on 25 February and attempted to stop Mr MacLeod’s laboratory class on 26 February. I say “forcibly”. I know that they did not assault the lecturer, they did not bash her or cut her with bush knives but the force was there nevertheless by threat and intimidation. The fact of More and others coming into a class in progress. He is the President of the SRC and all of them were non-course students. They barged into the room, the lecture was in progress, he went up to the rostrum where she was standing. He said the words, that I have already quoted, inter alia, “I don’t want to have to use violence”. It was enough. It worked. It was a threat and intimidation. The lecture was cancelled.
THE BARRICADES
I accept the evidence of the University witnesses that the barricades were erected and manned by the striking students on Thursday, 28 February. At about midday the academic and administrative work of the University ceased. Lecturers were not allowed to get to their rooms, to use the library or to give lectures. The University was put under a kind of siege where the only people free to move around in the campus were students, provided they did not attend lectures, and a few others permitted by them.
DAMAGE TO PROPERTY
It is true that there has been little damage to property. There has been some. For example matches have been jammed in the door locks, and some windows broken over the weekend. The damage could have been caused by striking students, by normal students who may have been drunk at the weekend, or by outside rascals coming into the University. Mr Yamula suggested that the windows might have been broken by the Vice Chancellor himself or Mr Roebuck. This is a civil case and in my view the probabilities are that the damage was done by the striking students.
THE DEFENDANTS’ ROLE
What has been the six defendants’ role in all this? I find that the forcible disruption of lectures was done by some of these defendants and with the approval, authority and support of the others. Their aim was to compel enforcement with the students strike decision. The students agreed to go on strike in support of their demand for a forty per cent increase in book allowance from the Government. If no action was taken by the student leaders, I think it is likely that a number of students would have attended lectures. Indeed a number did on 25, 26 February and thereafter. For example, I think it likely that the private students would have attended, and a number of others who disregarded the strike decision. The defendants were not content to leave it up to individual students to attend or not. As leaders they wanted to secure 100 per cent obedience to their decision and by Thursday, 28 February they had achieved that. No more lectures were held I find that the barricades were put up by these defendants; indeed they have not denied it. They were put up by them or with their authority and approval as stage two in their strategy to get their claim. Very little property has been damaged and I am therefore inclined to believe or inclined to accept the defendants’ evidence that they did not authorise the property damage and indeed advised their followers against it.
WHAT OF THE FUTURE?
The barricades were pulled down by the police in the early hours of Monday, 4 March 1985. They have not been re-erected yet. Classes resumed on 4 March 1985, with a smaller attendance and have continued on 5 March and again today, 6 March, with full attendance. I consider that the barricades have not been re-erected and the classes have not been disrupted in the last three days because of this case. The defendants are waiting on the outcome of this case before considering what they will do next. I think it highly likely that the classes will be disrupted in the future and that the barricades will be re-erected in the future unless restrained by suitable orders because:
(1)      The defendants did just that last week; they disrupted classes and erected barricades.
(2)      They have not achieved their aim of the strike, the forty per cent increase in book allowances.
(3)      Two of their members have told the court what the future intentions are, which I will mention in a moment.
I also consider it likely in the future that they will damage University property and assault people. I say that in regard to property, not because they have authorised, or encouraged property damage in the past, but I say that it is likely in the future for the following reasons: It is a likely part of the escalation of any strike particularly if it goes on and on without much apparent success, the likely trend is to go in for more and more and different kinds of illegal acts. And secondly, I say that because of what the leaders have said, particularly what Mr More has said, as to his future intentions. Similarly with physical violence to people. There has been no physical violence in terms of assaults to anybody yet, but I consider that is likely to happen in the future for the reasons which I have given; that it’s a natural part of an escalation of a strike which goes on and on and gets worse and worse and, secondly, because Mr More in his own evidence which I will quote in a moment is willing to do that if it is the majority wish. I refer now to Mr More’s evidence as to his future intentions. He said that he was a faithful mouthpiece and leader for the majority of the students. If the students wish to re-erect barricades he will support them. If the students wish to do acts of violence he will advocate that. If they wish to assault others he will go along with their wishes, and if they wish to do criminal acts which result in jail terms in order to achieve their claims, he will also go along with that. His personal morality, his personal ethics, are subsumed to the wish of the majority of the students.
Mr Oscar Yamula was asked too about his future intentions. His answers were complicated. He said if the lecturers and students are separate entities, then he will not contravene the lecturers’ constitutional rights. On the other hand, if the lecturers and students are regarded as one, and it is his view that they are really one, the two parts make up the whole of the University, then it is an internal matter and he sees nothing wrong with it. His intentions as to the future are not as extreme as those of Mr More. He has some regard for fundamental rights. Perhaps being a law student he has a better knowledge of them. By his answers he would support and advocate a barricading of the road in the future. He was asked a question, “Would he block the way to lecturers trying to lecture in the future without using violence, would he physically block their way?” He answered, “Yes, if he could do so without violating fundamental rights”. This is half-half kind of an answer. My view from his evidence as a whole and from his role to date and assessing the probabilities of the whole case is that he would certainly advocate barricades again and the forcible blocking of lecturers and students from attending lectures. He would certainly do that by threats and words but not by physical assaults.
THE DECISION MAKING PROCESS
How have the strike decisions been made? The evidence is not in dispute that the strike decision has been made by a process of decision making involving the SRC executive, consisting of the president, two vice-presidents, secretary, treasurer and an executive officer and that they have sought and gained the approval of the twenty provincial presidents. The provincial presidents have in turn consulted their people and forums have also been held where people have been asked to express their views on the support or non-support for the strike. That is the way the strike decisions — the decision to take the strike and the different steps in it — have been made.
SRC CONSTITUTION
The SRC Constitution is very relevant I think to the constitutional right Constitution, (s 37) protection of the law. The SRC Constitution is made under Statute No 169 the Students’ Representative Statute which establishes the SRC and says: “Its Constitution shall be approved by the University Council” and its Constitution has been tendered to me. So legally the SRC is established under statute and exhibit C is its Constitution. I read several clauses from it.
“Clause 5
Annual elections of members shall take place not later than the end of April each year, except that the President and the two Vice Presidents shall be elected no later than the end of October of the preceding year but they shall not be deemed to hold office until after the full Council has been elected as provided for in the earlier part of this section.”
So when the full Council is elected — which should be done by the end of April — the president and two vice-presidents take office. So at this stage the president and two vice-presidents are presidents-elect. The clause says “they shall not be deemed to hold office until after the full Council has been elected”. At the moment they are not holding office but they will hold office towards the end of April when the elections have taken place for the ordinary Council members. Secondly I read cl 14(a) of the constitution which sets out how the treasurer and secretary are appointed.
“Clause 14(a)
(a)      The Students’ Representative Council at its first meeting after the annual elections, shall elect two of its members to be Treasurer and Secretary respectively, who shall hold office until their successors are elected and shall be eligible for re-election.”
The treasurer and secretary are elected by the Council at its first meeting which will probably be at or after the end of April, and they are elected from among members of the Council, that is, elected from among the councillors (who are themselves elected). They are not elected from ordinary students. Neither are they appointed by the president. At the moment the Council has a treasurer and a secretary who have been appointed by the president-elect as a temporary measure. The Council at the moment also has on it an executive officer who has been appointed by the President. There is no provision in the constitution for the position of executive officer, nor for the appointment of an executive officer by the President.
“Clause 21(i)(b) provides:
The objects of the Students’ Representative Council shall include the following:
(i)(a)   . . .
(b)      any proposal relating to political actions such as strikes, demonstrations, boycott of classes, press releases that are not of an administrative nature for and on behalf of the student body must be agreed to at a referendum conducted by secret ballot by two-thirds of the total student body.”
My conclusions on this are that the decision to make the strike was made contrary to the constitution, and that the general method of consulting the 20 provincial presidents, getting their views coming back to the executive was also contrary to the constitution. I consider that the treasurer and secretary have been improperly appointed and that is a serious matter. That treasurer is acting, he is signing cheques and caring for the money. He is invalidly appointed. The SRC president and two vice-presidents are also only presidents-elect. Their term of office has not yet started. And as I see it that is a violation of constitutional rights under s 37 of the Constitution of Papua New Guinea. Section 37 says: “Every person has the right to the full protection of the law.” It then goes on to make particular provisions about people charged with criminal offences and people in jail, but just stopping at the first part, at the first comma, every person has the right to the full protection of the law. That means that a person affected by a law has the right that the law be applied properly in relation to him, and that officials appointed by law or under the law have the duty to act in accordance with the law. There is provision to amend the SRC Constitution, cll 38-43. The procedure for amendment has to be followed and the amendment has to be approved by the University Council. I consider that the rights of students to the full protection of the law has been breached. They are not getting the benefit of the law. A student for example who may have wished to have voted in a secret ballot against the strike but was not willing to speak up at forums or perhaps was not present at forums, has had no opportunity to do so. The students of University of Papua New Guinea have a right to the full protection of the law. They have a right that their affairs and their interests be protected and pursued by a duly elected SRC acting in accordance with its constitution. If the students do not like the constitution, if they regard it as too formal and too cumbersome, then there is an amendment procedure to be followed and later the Council must approve it.
CONSTITUTIONAL RIGHTS
I consider that the defendants have violated a number of constitutional rights. The first is s 32, the right to freedom. I consider that by erecting the barricades and forcibly disrupting classes the lecturers’ freedom to lecture and the students’ freedom to attend lectures if they want to, has been violated by the defendants’ actions. The second is s 37 which I have already mentioned. The violation of that section relates particularly to Mr More (the President) and Mr Pok (the Vice-President). In organising the strike on behalf of the SRC and running the affairs of the SRC as they have done, signing cheques and leading the SRC, they are depriving the students of the protection of the law for the reasons which I have given.
Section 46: Freedom of expression. I consider that this too has been violated again by the barricades and the forcible disruption of lectures. The freedom of expression of a lecturer to give lectures has been violated by these defendants. Likewise the freedom of students who have enrolled for a course to listen to a lecture which is a way of receiving ideas and information has been violated.
Section 52: The citizens’ freedom of movement. This is a right which is restricted only to citizens but I consider the erection of the barricades has violated that right. That citizen lecturers who wish to give lectures, citizen students who wish to attend lectures, members of the public who wish to move around the campus on lawful business, eg to visit the post office, the library, the bookshop, or the bank, have had their rights restricted by the roadblock.
The law students among the defendants should know that our Constitution has good enforcement procedures. It is a constitution with real teeth if I can use that word. The fundamental rights are not simply platitudes. There are rights which have real teeth which can be enforced. They can be enforced by the judge on his own motion and the orders that he can give may be quite creative. He is entitled to give all orders as are necessary or appropriate and I am not content to give the orders sought by the University alone. I believe there is reasonable probability of future infringement of these fundamental rights unless appropriate orders are given and I propose to give orders which I regard as necessary and appropriate to enforce fundamental rights despite the fact that those orders have not been sought by the Government or by the University.
ORDERS
I grant the orders sought by the university in their draft order except draft orders 3 and 4. Draft order 3 concerns serving the defendants with a sealed copy of the order. I do not think that is necessary. They are present today and are hearing the order. I refuse draft order 4, an order as to costs. It is true that costs normally follow the event. That the winner normally gets his costs. But in this case the student defendants are here at very short notice. They obeyed the summons, they have respected the authority of the court. Their lawyer has had very little time to prepare and he is opposed by three lawyers. The orders sought by the University which I grant, are as follows:
(1)      The defendants or any of them, by themselves, their servants or agents or otherwise howsoever, are hereby restrained from disobeying the reasonable directions of persons in authority over students, from wilfully or recklessly obstructing the use of the facilities of, or roads within the precincts of, the University of Papua New Guinea or of any part of the University of Papua New Guinea, from obstructing the due conduct of the business of the said University from being disorderly and from unduly interfering with the comfort or convenience of any person within the precints of the said University, and from wrongfully dealing with any property of the said University or within its precints.
(2)      This order and injunction shall continue in effect until further order.
(3)      The time for entry of this order and injunction shall be abridged to the time of the settlement by the registrar which shall take place forthwith.
I now make special orders in relation to the defendants Ume More and Fabian Pok and other members of the SRC. I consider that these men have violated s 37 of the Constitution of Papua New Guinea, the right to the full protection of the law in the running of the affairs of the SRC and that there is a high probability that they will continue to do so in the future unless effectively restrained. I consider on the evidence too that the female Vice-President has fully supported the strike and the decisions made by the other executives.
I, therefore, strip Ume More, Fabian Pok and Emily Dirua of their offices in the SRC. I likewise strip the secretary Awak, the treasurer Surari Putago, and the secretary John Rau of their offices. The appointment of these three contrary to SRC constitution and their decision to strike was taken contrary to the SRC constitution and violates the students’ fundamental constitutional right to full protection of the law. If further orders are not made I consider it highly likely that these people, or that some of them, will continue to use the SRC office, to administer its funds, and conduct its affairs as if legally appointed, and thereby continue to violate fundamental rights.
I therefore order:
(1)      The SRC office is closed to all students.
(2)      The financial affairs of the SRC to be managed by the University for the time being.
(3)      The University to hold fresh elections for the three elected positions within two months.
I consider it likely that these six defendants will continue to violate constitutional rights in the future, for reasons given above, unless restrained by appropriate orders. I therefore ban them from setting foot within the University campus for the rest of the year.
I do not consider that they will obey that order unless supported by suitable ancillary orders. Without such orders I consider it highly likely that they will leave this courtroom and conduct a forum at the University to decide whether they will obey this order or not.
The situation here is different from the 1979 strike case which I have studied, where Mr Balakau and others were barred for a few days from setting foot in the University. They obeyed the order because they were willing to obey it. They gave an undertaking to obey it. I detect no such willingness on the part of these defendants. I therefore make three ancillary orders:
(1)      I order them not to come within Port Moresby or Lae for the next three months.
(2)      To secure the same I order the Government to pay for and send them to their home Provinces.
(3)      To secure the due performance of 1 and 2, I remand them in custody at Bomana Corrective Institution for a period not exceeding five (5) days.
I grant liberty to apply and leave to appeal (if required).
Lawyer for the plaintiff: Young & Williams.
Lawyer for the defendants: J Pakau.
Lawyer for the Principal Legal Adviser: B O Emos, State Solicitor.