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

Unreported National Court Decisions

N1381

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 35 OF 1995
BETWEEN
IN THE MATTER OF SECTION 155 OF THE CONSTITUTION AND IN THE MATTER OF AN APPLICATION BY HONK KIAP & OTHERS - PLAINTIFF
AND
CHAIRMAN OF BOARD OF GOVERNORS - KEREVAT NATIONAL HIGH SCHOOL - FIRST DEFENDANT
AND
MINISTER FOR EDUCATION - SECOND DEFENDANT
AND
THE STATE - THIRD DEFENDANT

Mount Hagen

Injia J
29 September 1995

JUDICIAL REVIEW - Review of disciplinary proceeding of Kerevat National High School Governing Council resulting in expulsion of Highlands students following fight between Highlands students and Coastal (Manus) students - Grounds of review - Discrimination against Highlands students and breach of principles of natural justice - Constitution, s 55, 59, 155 (4).

Held

(1) There was insufficient evidence to establish a prima facie case of discriminatory policies or practices based on ethnic origin of students.

Regina Kembol v Paul Nepau & Another N122 [1994] distinguished.

(2) The expelled students were fairly dealt with by the School’s Governing Council and the National Education Board Appeal Committee in accordance with the principles of natural justice and their decisions should not be disturbed.

CONSTITUTION - Constitutional Right - Right of students at State-run National High School to receive an education - Highlands students voluntarily withdrew classes because of trouble but refused re-enrollment because of, inter alia, their behaviour during the trouble.

Held

Students already attending State-run National High School cannot be deprived of their right to continue school without the School’s Governing Council following school rules relating to re-enrollment, discipline, etc, which should be designed to observe the principles of natural justice - Constitution, ss. 57, 59, 155 (4).

Cases Cited

Regina Kembol v Paul Nepau & Another N1222 (1994)

Counsel

P Dowa for the Plaintiffs

A Kawi for the Defendants

DECISION

29 September 1995

INJIA J: The plaintiffs are former students from the Highlands who were attending Kerevat National High School in 1993. They seek declaratory orders that the termination and suspension notices issued by the first defendant in July 1993 be declared null and void, that the plaintiffs be immediately reinstated and that they be repatriated to the school within 7 days of the order at the defendant’s expense.

This action arises out of a trouble between Coastal students and Highlands students at Kerevat National High School in 1993. Coastal students (Manus students) clashed with Highlands students which resulted in classes at the school being disrupted and some school buildings being set ablaze. Consequently, some students were dealt by way of disciplinary proceedings by the school’s governing board and others being referred to the police for prosecution. Of those students dealt with disciplinarily, some 10 students were expelled and some students reprimanded. Some students withdrew classes voluntarily.

This application is made by Highlands students. On 24 March, claims in respect of 33 students were compromised and a consent order was made for them to be re-enrolled in 1995 or 1996 depending on availability of space at Kerevat or any other State-run National High School. These plaintiffs are:

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

A. STUDENTS REFUSED RE-ENROLMENT

GRADE 12

GRADE 11

B. EXPELLED STUDENTS

I will deal with the above two category of students separately.

1. EXPELLED STUDENTS

One of the main grounds for review by the court as per Mr Dowa’s written submission is that the expulsions or refusal to re-entrol were discriminatory as against Highlands students only and in breach of S. 55 of the Constitution and therefore unlawful. He submits the Coastal students were given lenient punishment or not even charged with any disciplinary offences whereas the Highlands students were severely dealt wth.

Allegations of discrimination in a State-run educational institution is a serious allegation which must be proved by the plaintiff with sufficient evidence. Once a prima facie case is established by the plaintiff, the onus is then on the school’s governing board or the State to negative the presumption. In the instant case, it appears from the evidence that each individual student was dealt with separately by the school’s governing council and it was only fair and just that each student affected was dealt with in this manner. The education rights of individual students were affected and principles of natural justice demanded that each individual case be considered separately. The record is that 33 Highlands students who withdrew classes were allowed to re-enrol on their own merits whilst refusing re-enrolment to another 18 Highlands students on their own merits. Also only 10 Highlands students were expelled at the first instance and not all the Highlands students. Students from the coast were also dealt with by the governing council. And so on the face of it, I cannot find as a matter of fact that the governing council of the school adopted discrimnatory practices against the Highlands students only. Also the governing council including the principal of the school had wide management powers over the shool to inform itself in whatever manner it saw fit as to the conduct of students under its control and to deal with students whom they believed were responsible for the fight which took place on the school grounds between the Highlands and Coastal students. This court will not interfere with their judgment on those administrative matters.

The plaintiff relies on Regina Kembol v Paul Nepau & Another N1222 [1994] but that case is distinguishable from the present case. In that case, there was in evidence a disciplinary policy of the school which prevented a student enrolled at an international school from being re-enrolled at a State-run community school. In this case, there is no such official discriminatory policy.

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

In relation to the observance of the principles of natural justice, the 10 expelled students were expelled after a full disciplinary hearing by the governing council. This is clearly reflected in the minutes of the governing council which is in evidence. These students subsequently appealed to the National Education Board Appeal Committee which heard and dismissed the appeals. I have also read the minutes of this appeal committee. I do not see anything wrong with the way in which the original disciplinary proceedings and appeal proceedings were heard and determined. The students concerned were given adequate opportunity to be head and good reasons were given for the decision. I find that the principles of natural justice were observed by the governing council and the National Education Board Appeal Committee in its deliberations. Therefore, I dismiss their claims.

2. STUDENTS REFUSED RE-ENROLMENT

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

“NON - ACCEPTANCE AT KEREVAT NATIONAL HIGH SCHOOL

Thank you for your letter asking to re-enroll at Kerevant.

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

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

Yours sincerely

(signed)

JEH Carter”

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

The case of student Paulus Ain is one example of a student who was involved in the trouble. He has filed an affidavit. Paulus Ain in his affidavit explained his role in the trouble as a leader who stood up in front of the school’s staff members and spoke on behalf of the Highlands students as a “peace-maker”. Paulus Ain withdrew from classes and was refused re-enrolment.

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

“A student who has withdraw from school may apply to the chairman of the governing council asking t be re-enroleed. Evidence showing that the factors which led to the student’s withdrawal have been eliminated must be attached to the application (eg Medical Certificates). Only the governing council has the power to decide whether the student may be re-admitted or not. This decision is also depended upon the availability of space.”

The school’s governing council has the overall say in who gets re-enrolled at the school. It is true that once an incumbedent student withdraws from classes, he is taking upon himself the risk of being left without a space in future because new year brings new intakes and space in our four National High Schools, as we all know, is limited. Refusal of students for re-enrolment will be based on a whole lot of considerations including the two considerations specified in the Handbood. According to the schools governing council, it appears that availability of space was not a consideration which affected its decision. It was the elimination of the factors which influenced the withdrawal which concerned the governing council. There are two factors involved here. The first one is the trouble at the school in 1993 which disrupted the school. This was followed by a series of disciplinary proceedings against some students both Highlands students and Coastal students resulting in some students being found guilty as a result of which 10 students were expelled, whilst others were imposed less severe punishment like a good behaviour bond. Other students were arrested and tried in courts of law. All these actions were taken by the governing council in order to restore peace, order and normalcy in the school. These purposes were satisfactorily achieved and the school was up and running again. This factor is common knowledge and it is not something which the students applying for re-enrolment have to procide evidence of. If there was anything wrong done by the student during the trouble which warranted the refusal for re-enrolment, this was not made know to the student concerned for their explanation. And the students affected were not told of what they were alleged to have done and given an opportunity to be heard on those allegations before the decision to refuse re-enrolment was made. As far as the students were concerned, now that this first factor was eliminated, they believed they were entitled to be re-enrolled. And I agree with them.

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

In relation to space, space as I have said in our 4 National High Schools is limited. Given the space problem in our National High Schools, they will have little or no chance of being enrolled in those other National High Schools. With their background, they will have a tough time finding a place at another State-run National High School. Therefore I would treat the refusal to re-enrol for disciplinary reasons associated with their supposed misconduct during the trouble as akin to expulsion from the school just as Mr Tetaga has equated the refusal for re-enrolment as “expulsion under the school rules”.

It is a truism that not all students are or were trouble-makers at the school. There are only a few students who cause trouble in our schools. Many students are innocent and certainly do not approve of the conduct of the trouble-makers but because the misconduct of few students disrupt the school, they are all affected. These students cannot remain on campus and perform effectively. This prompts their withdrawal and this decision is made individually. That is exactly what happened in this case. Now that they have applied for re-enrolment, each student’s case should have been considered separately and each student given a fair and full opportunity to defend the allegations of their misbehaviour in 1993 and the allegations concerning their unsatisfactory academic record. They were not informed of what was specifically alleged against them which justified the refusal for re-enrolment and given an opportunity to respond to those allegations. Instead, this decision was made in their absence whilst the students were living away from the school.

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

For these reasons, I am of the view that these students have been denied natural justice. I note that the plaintiff’s case is not founded on breach of the principles of natural justice. Nevertheless, I would still make the orders in respect of the 18 students pursuant to ss. 57, 59, and 155 (4) of the Constitution.

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

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

I award costs of these proceedings to the plaintiffs.

Lawyer for the Plaintiffs: Paulus M Dowa

Lawyer for the Defendants: Solicitor General