N5871

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 73 OF 2014

FLORIAN YASANGI
Applicant

V

ELIAS PADURA
Respondent

Madang: Canning J
2014: 12th December
2015: 30th January, 20th February

HUMAN RIGHTS – application for enforcement – liberty of the person: Constitution, Section 42 – right to freedom of information: Constitution, Section 51 – complaint by applicant (a citizen) that he had been used, exploited and humiliated by the respondent (a non-citizen) in establishment of a company and running of a business, that his human rights had been breached – claim for compensation.

The applicant is a citizen who was a good friend of the respondent, a non-citizen, over a period of 16 years. The respondent was planning to establish a company to run a retail business and offered the applicant the opportunity to be a director and shareholder in the company. The applicant agreed and the company was established, with the applicant and the respondent as directors and shareholders. The respondent then married the applicant's niece and took her on an overseas holiday, leaving the applicant in charge of the company's retail shop. The applicant claims that though he had been put in charge, the respondent appointed his sister-in-law, a grade 9 student, to look after the business and that when the respondent returned from overseas; the respondent blamed him for everything that had gone wrong with the business, and humiliated him in front of others. The applicant claims that the respondent appointed other directors from his home country, that that was done without his knowledge and that the respondent did not give him any information as to the affairs of the company or let him perform his directorial duties. He claimed that it is now apparent that the respondent had exploited him as a citizen for his own ends. He claimed that his human rights under Sections 42 (liberty of the person) and 51 (right to freedom of information) of the Constitution had been breached and sought compensation under Sections 57 and 58 of the Constitution. The respondent denied liability.

Held:

(1)	The applicant's claim failed as even if his underlying allegations about being exploited, used, manipulated and humiliated by a non-citizen were accepted at face value, no cause of action can be established for infringement of the human rights guaranteed by Sections 42(1) or 51(1) of the Constitution.

(2)	The human right in Section 42(1) of the Constitution confers the right of "personal liberty" on all persons in Papua New Guinea, which means physical liberty and freedom. Nothing that the respondent is alleged to have done affected or deprived the applicant of his personal liberty.

(3)	The human right in Section 51(1) of the Constitution confers the right of reasonable access to "official documents" on citizens, which means access to documents of the Government or some governmental body. The right of access does not extend to documents of a private company.

(4)	In any event the applicant's allegations were by their very nature vague and emotive and the evidence presented by the respondent was more credible. The Court concluded that this was a case of a soured personal friendship, combined with misunderstandings within an extended family. The parties were encouraged to attempt a solution by invoking customary mediation outside the Court.

(5)	No breach of human rights took place. No cause of action was proven. The case was dismissed and the parties were ordered to pay their own costs.

Case cited

The following case is cited in the judgment:

The State v Songke Mai and Gai Avi [1988] PNGLR 56

APPLICATION

These were proceedings in which the applicant sought to establish liability for breach of human rights.

Counsel

J Morog, for the Applicant
E Padura, the respondent, in person

20th February, 2015 

1. CANNINGS J: The question in this case is whether the respondent, Elias Padura, a Philippines national and a non-citizen, breached the human rights of the applicant, Florian Yasangi, a Papua New Guinea citizen.

2. They were good friends over a period of 16 years until early 2013. The respondent was planning in early 2012 to establish a company to run a retail business and offered the applicant the opportunity to be a director and shareholder in the company. The applicant agreed and the company was established in May 2012. It was called Irish Trading Ltd. It conducted a retail shop in Madang town. Both the applicant and the respondent were directors and shareholders.

3. The respondent then married the applicant's niece. At the end of 2012 he took her home to the Philippines for a holiday, leaving the applicant in charge of the company's retail shop. The applicant claims that though he had been put in charge, the respondent appointed his sister-in-law, a grade 9 student, to look after the business and supervise him. The applicant says that when the respondent returned from overseas, he (the respondent) blamed him for everything that had gone wrong with the business, and humiliated him in front of others. The applicant claims that the respondent appointed other directors from his home country, his son and nephew, and that was done without his knowledge. He says the respondent did not give him any information as to the affairs of the company or let him perform his directorial duties. He claims that it is now apparent that the respondent had exploited him as a citizen for the respondent's own ends.

4. The applicant claims that his human rights under Sections 42(1) (liberty of the person) and 51(1) (right to freedom of information) of the Constitution have been breached by the respondent. He seeks compensation under Sections 57 and 58 of the Constitution. The respondent denies liability. A trial has been conducted. The issues are:

1	What has to be proven, to establish a breach of Section 42(1) of the Constitution?

2	Has a breach of human rights been established under Section 42(1)?

3	What has to be proven, to establish a breach of Section 51(1) of the Constitution?

4	Has a breach of human rights been established under Section 51(1)?

5	What orders should the Court make?

1	WHAT HAS TO BE PROVEN, TO ESTABLISH A BREACH OF SECTION 42(1) OF THE CONSTITUTION?

5. Section 42 confers the right of personal liberty on all persons in Papua New Guinea (citizen or non-citizen) but provides that a person can be deprived of that right in certain circumstances. It is a qualified right. Section 42(1) states:

No person shall be deprived of his personal liberty except—

(a)	in consequence of his unfitness to plead to a criminal charge; or

(b)	in the execution of the sentence or order of a court in respect of an offence of which he has been found guilty, or in the execution of the order of a court of record punishing him for contempt of itself or another court or tribunal; or

(c)	by reason of his failure to comply with the order of a court made to secure the fulfilment of an obligation (other than a contractual obligation) imposed upon him by law; or

(d)	upon reasonable suspicion of his having committed, or being about to commit, an offence; or

(e)	for the purpose of bringing him before a court in execution of the order of a court; or

(f)	for the purpose of preventing the introduction or spread of a disease or suspected disease, whether of humans, animals or plants, or for normal purposes of quarantine; or

(g)	for the purpose of preventing the unlawful entry of a person into Papua New Guinea, or for the purpose of effecting the expulsion, extradition or other lawful removal of a person from Papua New Guinea, or the taking of proceedings for any of those purposes; or

(ga)	for the purposes of holding a foreign national under arrangements made by Papua New Guinea with another country or with an international organization that the Minister responsible for immigration matters, in his absolute discretion, approves; or

(h)	in the case of a person who is, or is reasonably suspected of being of unsound mind, or addicted to drugs or alcohol, or a vagrant, for the purposes of—

(i)	his care or treatment or the protection of the community, under an order of a court; or

(ii)	taking prompt legal proceedings to obtain an order of a court of a type referred to in Subparagraph (i);

(i)	in the case of a person who has not attained the age of 18 years, for the purpose of his education or welfare under the order of a court or with the consent of his guardian.

6. The critical component of Section 42(1) is that it confers the right of "personal liberty" on all persons in Papua New Guinea, but provides that a person can be deprived of that right in certain circumstances (prescribed by paragraphs (a) to (i)). Personal liberty means physical liberty and freedom. A person is deprived of their liberty when he or she is arrested or detained (The State v Songke Mai and Gai Avi [1988] PNGLR 56). "Personal liberty" does not extend to religious or spiritual liberty or other freedoms that are guaranteed by other human rights provisions of the Constitution, for example the right to freedom itself guaranteed by Section 32(2) (right to freedom), which states:

Every person has the right to freedom based on law, and accordingly has a legal right to do anything that—

(a)	does not injure or interfere with the rights and freedoms of others; and
(b)	is not prohibited by law,

and no person—

(c)	is obliged to do anything that is not required by law; and
(d)	may be prevented from doing anything that complies with the provisions of paragraphs (a) and (b).

2	HAS A BREACH OF HUMAN RIGHTS BEEN ESTABLISHED UNDER SECTION 42(1)?

7. No. Nothing that the respondent is alleged to have done affected or deprived the applicant of his physical liberty.

3	WHAT HAS TO BE PROVEN, TO ESTABLISH A BREACH OF SECTION 51(1) OF THE CONSTITUTION?

8. Section 51(1) confers the right of reasonable access to official documents on all citizens of Papua New Guinea. It is one of the bundle of human rights only exercisable and enforceable by citizens, under Sections 50 to 56 of the Constitution. Other special rights of citizens include the right to vote and stand for public office (Section 50), the right to freedom of movement (Section 52), the right to protection from unjust deprivation of property (Section 53), the right to equality (Section 55) and the right to acquire freehold land (Section 56). It is a qualified right. Section 51(1) states:

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.

9. The critical component of Section 51(1) is that it confers the right of reasonable access to "official documents". This means access to documents of the Government or some governmental body. The right of access does not extend to documents of a private company.

4	HAS A BREACH OF HUMAN RIGHTS BEEN ESTABLISHED UNDER SECTION 51(1)?

10. No. There is no allegation that the respondent prohibited access to any official documents.

5	WHAT ORDERS SHOULD THE COURT MAKE?

11. This has been a trial on liability. I have concluded that the applicant's claim has failed entirely as even if his underlying allegations about being exploited, used, manipulated and humiliated by a non-citizen were accepted at face value, no cause of action can be established for infringement of human rights under Sections 42(1) or 51(1) of the Constitution. The proceedings must be dismissed.

12. In closing, I point out that there is no evidence that any of the applicant's other human rights were breached by the respondent. The applicant's allegations are vague and emotive and the evidence that has been presented by the respondent is more credible than the applicant's evidence. This is a case of a soured personal friendship, combined with misunderstandings within an extended family. The parties need to get together with the assistance of respected leaders within their extended family and attempt a solution by invoking customary mediation. This should be done outside the Court. I will allow the parties to bear their own costs.

ORDER

(1)	All claims for relief are refused and the proceedings are entirely dismissed.

(2)	The parties will bear their own costs.

(3)	The file is closed.

Judgment accordingly.

_____________________________________________________________

Public Solicitor: Lawyer for the Applicant