N7613
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (HR) NOS 24-27 OF 2018

BOSON WILSON, ROVE OLK,
BENJAMIN BOREWA & AUGUSTINE NEETOH
Plaintiffs

V

JOSEPH KEKEYA & JOSEPH OGI
First Defendants

THE DIVINE WORD UNIVERSITY
Second Defendant

Madang: Cannings J
2018: 10, 20 November, 12 December

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

PRACTICE AND PROCEDURE – mode of commencement of proceedings – whether proceedings to challenge decision of university disciplinary board to terminate students’ studies required to be instituted by judicial review – whether appropriate to commence proceedings by application for enforcement of human rights. 

The plaintiffs were university students allegedly involved in alcohol-related incidents on or near the university campus. They were each charged with disciplinary offences under the university’s student disciplinary code, found guilty by the student disciplinary board and terminated from studies. They were informed that they had no right of appeal. They instituted proceedings in the National Court by applications for enforcement of human rights, claiming that their human rights were breached in three respects: denial of full protection of the law under Section 37(1) of the Constitution, dealt with harshly and oppressively contrary to Section 41(1) of the Constitution and not given a fair hearing contrary to the principles of natural justice in Section 59 of the Constitution. The chairman and deputy chairman of the student disciplinary board and the university were named as defendants. They argued as a preliminary point that the proceedings were an abuse of process as the plaintiffs ought to have commenced proceedings by judicial review under Order 16 of the National Court Rules. As to the merits of the claim they denied all allegations of breaches of human rights and argued that the plaintiffs had been dealt with fairly in accordance with the student disciplinary code that the students expressly agreed to be bound by when they enrolled for studies at the university. 

Held:

(1)	The proceedings were not an abuse of process as the plaintiffs were not applying for the type of orders that would make it necessary to commence proceedings under Order 16 of the National Court Rules. They were applying for enforcement of human rights, properly invoking the jurisdiction of the National Court under Section 57 of the Constitution. 

(2)	The second defendant failed to adhere to the principles of natural justice enshrined in Section 59 of the Constitution in its dealing with the plaintiffs in that: (a) the plaintiffs were given vague and indirect charges, not expressed in the language of the disciplinary code to which they were subject; (b) they were given insufficient time to prepare for the hearing; (c) they were not given copies of witness statements relied on by the disciplinary board; (d) they were not given the opportunity to present witnesses or witness statements to support their versions of events; the consequence being that the second defendant did not act fairly and was not seen to act fairly. 

(3)	The second defendant thereby failed to afford the plaintiffs the full protection of the law under Section 37(1) of the Constitution and dealt with the plaintiffs in a manner not warranted by the particular circumstances of their particular cases contrary to Section 41(1)(b) of the Constitution.

(4)	Declared: that the decisions made by and on behalf of the defendants, to find the plaintiffs guilty of disciplinary offences and to terminate their studies, were unlawful acts for the purposes of Section 41(1)(b) of the Constitution and null and void. 

(5)	Ordered: that the plaintiffs be reinstated to studies and awarded damages of K1,000.00 each, and costs. 

Cases Cited

The following cases are cited in the judgment:

Gene v Hamidian-Rad [1999] PNGLR 444
Jacob Sanga Kumbu v Dr Nicholas Mann (2012) N4746
Manuel Gramgari v Steve Crawford (2012) N4950 
National Executive Council & Luke Lucas v Public Employees Association [1993] PNGLR 264
Rabaul Shipping Limited v Peter Aisi (2006) N3173 
Re Fisherman’s Island [1979] PNGLR 202 

APPLICATIONS

These were applications for enforcement of human rights.

Counsel

B B Wak, for the Plaintiffs
G Haumu, for the Defendants

12th December, 2018 

1.      CANNINGS J: The four plaintiffs are young men who were students at Divine Word University, Madang, allegedly involved in alcohol-related incidents on or near the university campus earlier this year. They were each charged with disciplinary offences under the university’s student disciplinary code, found guilty by the student disciplinary board and terminated from studies. They were informed that they had no right of appeal. 

2.     They have each instituted proceedings in the National Court by originating summons, making applications for enforcement of human rights. They argue that their human rights were breached in three respects: they were denied the full protection of the law under Section 37(1) of the Constitution, dealt with harshly and oppressively contrary to Section 41(1) of the Constitution and denied a fair hearing contrary to the principles of natural justice in Section 59 of the Constitution. They seek declarations that their human rights were breached and orders for their reinstatement as students and damages.    

3.     The chairman (Mr Joseph Kekeya) and deputy chairman (Mr Joseph Ogi) of the student disciplinary board are the first defendants and the Divine Word University is the second defendant. They argue as a preliminary point that the proceedings are an abuse of process as the plaintiffs ought to have commenced proceedings by judicial review under Order 16 of the National Court Rules. As to the merits of the claim they deny all allegations of breaches of human rights and argue that the plaintiffs were dealt with strictly but fairly in accordance with the student disciplinary code which implements the university’s zero tolerance of alcohol policy that the plaintiffs expressly agreed to be bound by, when they enrolled for 2018 studies at the university. 

ISSUES 

4.    The following issues arise:

(1)	Should the proceedings be dismissed as an abuse of process?

(2)	What allegations did the plaintiffs face and how were they dealt with?  

(3)	Was there any breach of the human rights of plaintiff Boson Wilson?

(4)	Was there any breach of the human rights of plaintiffs Rove Olk, Benjamin Borewa or Augustine Neetoh?

(5)	What orders should the court make? 

1	SHOULD THE PROCEEDINGS BE DISMISSED AS AN ABUSE OF PROCESS?

5.      Mr Haumu, for the defendants, submitted that the proceedings are an abuse of process as what the plaintiffs are trying to do is obtain judicial review of the administrative decisions of the defendants to charge them, find them guilty and terminate their studies, which can only be done by making an application for judicial review under Order 16 of the National Court Rules.

6.     For two reasons I am not impressed by that argument. First, the Order 16 procedure is only the exclusive procedure for commencing proceedings when two conditions apply: 
 
 (a) the plaintiff is applying for orders in the nature of prerogative writs (those described in Order 16, Rule 1(1) of the Rules), and 
 
 (b) the decisions reviewed are those of a public or governmental body (National Executive Council & Luke Lucas v Public Employees Association [1993] PNGLR 264, Gene v Hamidian-Rad [1999] PNGLR 444). 

7.     Here, neither of those conditions apply. As to (a), the plaintiffs are not seeking any of the orders prescribed by Rule 1(1): mandamus, prohibition, certiorari or quo warranto. As to (b), the defendants are not public or governmental officers or bodies. The University is established by statute, the Divine Word University Act 1999, but the members of its governing body, the Council of the University, are appointed not by any government or Minister but by the Head of the Mission of the Society of the Divine Word, which is not a governmental body; and the Council is permitted to govern the affairs of the University free of substantial direction or control by any governmental officer or body.   

8.     Secondly, the present proceedings have been commenced by the plaintiffs directly under Section 57(1) of the Constitution, which allows any person with an interest in protection and enforcement of human rights to apply to the National Court for enforcement of those rights. The plaintiffs are applying for enforcement of their individual rights, so, clearly, they have a sufficient interest and they have properly invoked the jurisdiction of the Court. They have each filed an originating summons and been given an “OS (HR)” file reference in accordance with Order 23 (human rights jurisdiction), Rule 7(1)(b) of the National Court Rules. 

9.     The defendants’ preliminary point fails and I will proceed to deal with the applications on their merits.   

2	WHAT ALLEGATIONS DID THE PLAINTIFFS FACE AND HOW WERE THEY DEALT WITH?

10.     The four plaintiffs can be put into two categories. First, Boson Wilson (OS (HR) No 24 of 2018). The incident in which he was involved, which led to termination of his studies, occurred on-campus on Sunday 10 June 2018. Secondly, Rove Olk, Benjamin Borewa and Augustine Neetoh (OS (HR) Nos 25, 26 & 17 of 2018). The incident in which they were involved, which led to termination of their studies, occurred off-campus on Friday 15 June 2018.   

Boson Wilson

11.     On 19 June 2018 he was served with a document entitled “Notice of Consideration – Disciplinary Action”, signed by Mr Vincent Keto, Director of Student Services, expressed in the following terms: 

Dear Mr Wilson,

Subject: Notice of Consideration of Disciplinary Action

I am advising you that I am considering recommending the taking of disciplinary action in relation to the following matters as witnessed and documented against your behaviour:

That on Sunday the 10th of June 2018 at 1:50 pm an eyewitness account and report documented explicitly manifested that you were under the influence of alcohol and used obscene languages by defaming a staff at the student mess to serve your portion of lunch when arriving late. In doing so, you verbally assaulted the staff and disrespected his dignity as a person. As alleged this also constitutes a breach of the agreement you signed with the University on registration day. Therefore, your behaviours have breached DWU Student Disciplinary Policy as follows;

2.4 Students Policies and Regulation 2011
Not being in control of your behaviour whilst being under the influence of alcohol.

5.5 Category D offence from the 2017 Latest Revision Edition
c) Drunkenness off and on campus is unacceptable behaviour for a DWU student and it is strictly prohibited.

4.3 Category B offences
Disrespectful/ rudeness/ wilful disobedience to staff but not limited to; [sic]

The Disciplinary Board will deliberate on your case; to determine the appropriate sanction(s), which will be applied in your case.

In order to consider your response in breaching the Policy, I am requesting your attendance at the Urgent Student Disciplinary Board Meeting to be held at Student Services Conference Room on 20/06/2018 at 1:30 pm.

In this disciplinary process it is allowable for your to solicit representation, if your wish to bring another person to act as an advocate on your behalf

The Disciplinary Board is tasked to consider all relevant information to decide whether a disciplinary sanction is warranted.

Under the University Disciplinary Policy (e-copy can be accessed on the intranet) the Vice President Students Affairs may suspend a student or recommend expulsion from this or all campuses of Divine Word University.

Yours sincerely

Vincent Keto
Director of Student Services

12.     The next day, 20 June 2018, the plaintiff appeared before the Disciplinary Board and responded to the allegations. He presented a written statement in the following terms:

First of all, I would like to make it clear that I was neither under the influence of drug nor alcohol as stated on the report. It was on Sunday, 10th of June around 12:46 pm when I left JP Hall and went to the mess. The front door was closed, only the side door was opened but when I entered the mess, there was no staff there to serve me. So I knocked gently several times on the counter but no one bothered to help me out. So I just waited there for someone to respond to me and when I looked at the time again, it is going up to 1 pm so I was frustrated because they might come out telling me I’m late, so I banged the counter twice to summon them and when a guy shows up, I picked on him “Why were you not answering me, I’m hungry and I’ve been here for long now and I will punch you”, I told him. Because we argued I withdrew my plate and go without any food.  

13.     The Board later that day verbally notified the plaintiff of its decision, which was then put in writing: 

Dear Wilson,

Subject: Notice of Decision of Disciplinary Board 

The Disciplinary Board hearing of 20th June 2018 considered the charges brought against you and decided that there was sufficient evidence to substantiate the allegations that  you had breached the University Disciplinary Policy (Sub-section 5.5 Category D Offence) concerning under the influence of alcohol and verbally assaulted a fellow student and a DWU worker using improper language on Madang campus.   

You are hereby notified that the Disciplinary Board has decided to impose the following sanction:

You are terminated from studies [with] effect 20th June 2018.   

Sincerely

Joseph Kekeyo
Chair of Disciplinary Board 

14.     The plaintiff has given evidence to the Court that the Board relied on witness statements from the mess staff as to what happened, but he was not provided with copies of the statements before or at the hearing. Nor was he provided with an incident report, which he claims to have been entitled to under the Student Disciplinary Policy and Process. 
 
15.     The defendants have not rebutted those allegations of fact. They tendered an affidavit by the Mess Supervisor, Mr Caspar Nimbe, who gives his account of the incident of 10 June 2018. Mr Nimbe testifies that the plaintiff arrived 30 minutes late for  lunch, shouted at staff, used abusive language, was heavily under the influence of alcohol and threatened to murder one of the staff members. However that affidavit was prepared for these court proceedings. There is no evidence of the plaintiff being given a copy of any witness statement by Mr Nimbe that was considered by the Disciplinary Board, or any other witness statement considered by the Board. There is no evidence of what witness statements were actually before the Board or what incident report was considered by the Board. No records of the Board’s hearing or its deliberations have been made available to the Court. 

16.     This is significant. It is reasonably expected that that sort of evidence would have been presented by the defendants, as the fairness of the procedures that they deployed in the course of deciding that the plaintiff was terminated from studies is a critical issue. It is reasonably expected that the defendants would want to reveal what evidence there was that the plaintiff had committed serious disciplinary offences, and show how he was given that evidence before the hearing and given the opportunity to respond to it; and show who prepared the incident report and show what it contained and how it was given to the plaintiff before the hearing, and show how the Board made its decision. But there is no evidence of that sort before the court. 

17.     This is not the defendants’ case and it is not them who has the legal burden of proof. The plaintiff always bears the legal burden of proving his case on the balance of probabilities. But there comes a point when a plaintiff produces so much evidence on a question of fact – here, whether he was shown copies of witness statements and whether there was an incident report prepared – that the evidentiary burden of proof shifts to the defendants. 

18.     That point has been reached. The evidentiary burden has shifted to the defendants: to disprove the allegation that they did not provide the plaintiff with witness statements and an incident report, and indeed that there was no incident report prepared by anyone. They have not discharged that burden. 
 
19.     At this point another fact-finding principle is relevant: if one side of a case presents evidence of a fact and the opposing side presents no evidence to contradict it, the court is obliged to make a finding of fact that is supported by the evidence presented, unless that evidence is so incredible that it would not be reasonable to accept it (Re Fisherman’s Island [1979] PNGLR 202, Rabaul Shipping Limited v Peter Aisi (2006) N3173, Manuel Gramgari v Steve Crawford (2012) N4950). 

20.     I don’t think the plaintiff’s evidence is incredible or far-fetched, so I accept his evidence and make the following findings of fact: 

•	the plaintiff was not provided with witness statements about the incident of 10 June, either before or at the hearing on 20 June; 

•	he was not given a copy of an incident report that led to him facing the charges; 

•	no incident report was prepared by anyone;

•	the Disciplinary Board made its decisions to find the plaintiff guilty of a disciplinary offence and to terminate his studies on the basis of witness statements, the contents of which were unknown to the plaintiff and he was given no opportunity to test (and the contents of which are unknown to the court).

Rove Olk, Benjamin Borewa & Augustine Neetoh  

21.     On 18 July 2018 they were each served with a document entitled “Notice of Consideration – Disciplinary Action”, signed by Mr Vincent Keto, Director of Student Services. Each of the three documents was expressed in the same terms (subject to a few exceptions, which are noted): 

Dear Mr Olk/Borewa/Neetoh [as the case may be],

Subject: Notice of Consideration of Disciplinary Action

I am advising you that I am considering recommending the taking of disciplinary action in relation to the following matters as witnessed and documented against your behaviour:

That on Friday the 15th of June 2018 at 5:30 am eye witnesses account and report documented explicitly manifested that you and your peers were intoxicated and being in possession of alcohol at Tri-line Store when formally being approached. Whilst being under the influence of alcohol you were being a nuisance in public. In doing so, this constitutes a breach of the agreement you signed with the University on registration day. Therefore, [in the case of Rove Olk, the additional words “being a repeated offender” appear here], your behaviours have breached DWU Student Disciplinary Policy;

5.2 Category A Offence:
•	Indecent conduct in public relating to criminal offence

5.5 Category D offence
c) Drunkenness off and on campus is unacceptable behaviour for a DWU student and it is strictly prohibited
d) Consumption of alcohol in non-licensed public areas is a criminal offence and therefore prohibited

7.11 Investigations, laying of charges and DB hearings for serious risks situations
c) serious detriment to the interests or good repute of the University but not limited to; [sic]

The Discipline Board will deliberate on your case; to determine the appropriate sanction(s), which will be applied in your case.

In order to consider your response in breaching the Policy, I am requesting your attendance at the Urgent Student Disciplinary Board Meeting to be held at Student Services Conference Room on 20/07/2018 at 1:30 pm.

In this disciplinary process; it is allowable for your to solicit representation, if your wish to bring another person to act as an advocate on your behalf.

The Disciplinary Board is tasked to consider all relevant information to decide whether a disciplinary sanction is warranted.

Under the University Disciplinary Policy (e-copy can be excessed on the intranet) the Vice-President Students Affairs may suspend a student or recommend expulsion from this or all campuses of Divine Word University.

Yours sincerely

Vincent Keto
Director of Student Services

22.     On 21 July 2018 the plaintiffs appeared before the Disciplinary Board and denied the allegations. Their cases were dealt with separately. They each presented a written statement to the board.

Rove Olk stated:  

Regarding the incident that happened on Friday morning at 3-Line area.

I spent my night at Paramed campus because I and some of the Eastern Highlands students will be travelling together to Goroka the next morning. Early in the morning Augustine Neetoh and Benjamin Borewa are going down to the mess so I followed them thinking of withdrawing my bus fee from the school ATM at the main campus.

On our way down the two boys decided to buy betel-nut and smoke at 3-Line so we checked the security guards of the store but it was finished. On the other side were some drunken outsiders one of them was the boy who lives at 3-Line, he told us that he would check his aunt (who is a betel-nut seller) at the back so we can buy betel-nut from her, he took the money and went inside. While waiting for him to return, the Dean came and since we were standing with the drunken outsiders he thought that we were with them drinking beer.

Benjamin Borewa stated:  

During the night of Thursday the 14 of June 2018, myself and Augustine Neetoh decided to stay late at the labour ward to assist a mother to deliver her twins. At around 5:30 am in the morning of Friday the 15th of June, we left the hospital and went back to Paramed campus where we met Rove Olk a 3rd year RH student who was sitting down with his laptop surfing the internet.

Since it was already dawn, we decided to go down to 3-Line to buy smoke and buai and stroll down to the ness for breakfast.

At 3-Line, we met three men who were drunk and standing in front of the stores at 3-Line, they were outsiders which we couldn’t recognise the other two but the other one is a man from Highlands who used to live at the back of one of those stores at 3-Line.

We then asked the guards in front of the store if they are selling any smokes but they replied, “sore simuk pinis ya”. So one of the drunkards, that Highlands fellow that we knew got up and said “kam moni blo yupla kam mi go sekim ol lainli aus na kisim simuk blo yupla” so Augustine gave him the money and he went in to get our smoke. While waiting for him to return, we were then approached by Mr Tamb, Mrs Tamb, the Dean of Men for Paramed campus and the Dean’s wife.

From there the Dean Mr Vitus Markus thought that we were also drunk and scolded us for making too much noise and disturbing the community, which we didn’t do. I went to explain to him (the Dean) but he said we will have to explain the incident that happened to him later on in the day.

Augustine Neetoh stated:  

It was Friday morning at around 5:30 am on the 15th of June 2018, me and Benjamin Borewa we came back from the hospital and to the campus and it was already dawn and we decided to do down to 3-Line to buy smoke and betel-nut. At the campus we met Rove Olk and we called him to come with and then we went to 3-Line.

At the 3-Line we asked the security guards if they have betel-nut and smoke for sale and they said that they do not have smoke or betel-nut. At that very moment there were also three drunkards there, where two of them we do not know and only one of them we knew which is the guy from Highlands who stays and sells smoke and buai at 3-Line. When he heard that we were asking for smoke and buai for sale he came up and said “give me your money and I will go and buy the smoke and buai for you” and then I gave him the money and then he went to the house.

When we were waiting for him to come back and at the same time Markus Vitus, male dean at Paramed campus showed up with Mr Tamb, Mrs Tamb and Mrs Vitus Markus came straight to us thinking that we were drunk and scolded at us thinking that we were the one responsible for the noise but it was not us either. We tried to explain everything to him but he said that he was in a hurry down to the mess and he said that we would go and see him later on that day.

23.     The plaintiffs were notified of the Board’s decisions, in separate letters dated 21 July 2018, in the following terms: 

Dear Mr Olk/Borewa/Neetoh [as the case may be],

Subject: Notice of Consideration of Disciplinary Action

The Disciplinary Board hearing of 20th July 2018 considered the charges brought against you and decided that there was sufficient evidence to substantiate the allegations that you had breached the University Disciplinary Policy (Sub-section 5.5 Category D Offence) concerning possession, and consumption of alcohol in a non-licensed public area.

You are hereby notified that the Disciplinary Board has decided to impose the following sanction:

You are terminated from studies effective 20th July, 2018. There is no right of appeal and you will be given 7 days to vacate the University campus. 

Sincerely

Joseph Ogi
Stand-in Chair of Disciplinary Board 

24.     These plaintiffs have given evidence to the Court, similar to the evidence of Boson Wilson, that:

•	the Board relied on witness statements as to what happened, but they were not provided with copies of the statements before or at the hearing;

•	they were not provided with an incident report;

•	the Board did not consider their statements as to the incident; 

•	they were not asked to bring witnesses to support their version of the incident; 

•	the Board did not give any reasons for its decisions other than that “there was sufficient evidence to substantiate the allegations”.

25.     The defendants have not rebutted those allegations of fact. They tendered an affidavit by the Residential Male Dean of Modilon campus, Mr Vitus Markus, who gives his account of the incident of 15 June 2018. Mr Markus testifies that at 5.30 am he and his wife were walking from the Modilon campus to the main campus when they came across the plaintiffs who he recognised as rural health students. They were in company of a group of drunken youths and were heavily intoxicated. He confiscated from Augustine Neetoh a full bottle of beer that he had hidden inside his shirt. He prepared an incident report and his wife made a witness statement, and both documents are annexed to his affidavit. 

26.     However, that affidavit was prepared for these court proceedings. There is no evidence of the plaintiffs being given a copy of any witness statement or incident report by Mr Markus that was considered by the Disciplinary Board, or any other witness statement considered by the Board. There is no evidence of what witness statements were actually before the Board or what incident report was considered by the Board. No records of the Board’s hearing or its deliberations have been made available to the Court. 

27.     This is, as in the case of Boson Wilson, significant. It is reasonably expected that that sort of evidence would have been presented by the defendants as the fairness of the procedures that they deployed in the course of deciding that the plaintiffs would be terminated from studies is a critical issue. It is reasonably expected that the defendants would want to reveal what evidence there was that the plaintiffs had committed serious disciplinary offences, and show how the plaintiffs were given that evidence before the hearing and given the opportunity to respond to it; and show who prepared the incident report and show what it contained and how it was given to the plaintiffs before the hearing, and show how the Board made its decisions. But there is no evidence of that sort before the court. 

28.     This is not the defendants’ case and it is not them who has the legal burden of proof. However, the evidentiary burden has shifted to the defendants: to disprove the allegation that they did not provide the plaintiffs with witness statements and Mr Markus’s incident report. They have not discharged that burden. 
 
29.     At this point I apply the Fisherman’s Island fact-finding principle referred to in the case of Boson Wilson. I don’t think the plaintiffs’ evidence is incredible or far-fetched, so I accept their evidence and, drawing reasonable inferences from the available evidence and having regard to the defendants’ failure to discharge the evidentiary burden of proof, make the following findings of fact: 

•	the plaintiffs were not provided with witness statements about the incident of 15 June, either before or at the hearing on 20 July; 

•	they were not given a copy of Mr Markus’s incident report, which apparently led to them facing the charges; 

•	they were not asked to bring witnesses to support their version of the incident; 

•	the Disciplinary Board made its decisions to find the plaintiffs guilty of disciplinary offences and to terminate their studies on the basis of witness statements, the contents of which were unknown to the plaintiffs and they were given no opportunity to test;

•	the Board did not consider their statements as to the incident; 

•	the Board did not give any reasons for its decisions other than that “there was sufficient evidence to substantiate the allegations”.

3	WAS THERE ANY BREACH OF THE HUMAN RIGHTS OF BOSON WILSON?

30.     I uphold the submissions of Mr Wak that the plaintiff was dealt with in a manner that was procedurally unfair, in the following respects: 

a)	The charges that he faced were vaguely expressed and not drafted in the language of the disciplinary offences he was alleged to have committed. The document containing the allegations was not described as a notice of charge or a notice of allegations or in any other simple and direct terms. It was called a “notice of consideration of disciplinary action”, which began with the confusing and indirect statement “I am advising you that I am considering recommending the taking of disciplinary action in relation to the following matters …” The document then referred to a purported charge described as “2.4 Students Policies and Regulation 2011. Not being in control of your behaviour whilst being under the influence of alcohol”. However, there appears to be no such provision in the Student Disciplinary Policy and Process document that has been admitted into evidence,  which is properly regarded as the disciplinary code to be followed in any case of disciplinary action against a student.  The second purported charge was described as “5.5 category D offence from the 2017 Latest Revised Edition c) Drunkenness off and on campus [sic] is unacceptable behaviour for a DWU student and it is strictly prohibited”. This charge is not drafted in the language of the disciplinary code. Likewise with the third purported charge, described as “4.3 category B offences. Disrespect/rudeness/wilful disobedience to staff but not limited to;” [sic]. Disciplinary charges must be cast in the language of the disciplinary code creating the charges. Failure to adhere to this principle can mean that the charge is defective and amount to a denial of natural justice (Jacob Sanga Kumbu v Dr Nicholas Mann (2012) N4746). All the charges presented to the plaintiff were poorly drafted and defective, making it difficult for the recipient to respond effectively to them. 

b)	The plaintiff was given only one day to prepare for the hearing. This was contrary to the disciplinary code (which required at least two days’ notice). It was insufficient notice. 

c)	He was not given copies of witness statements or the incident report relied on by the disciplinary board. 

d)	He was not given the opportunity to present witnesses or witness statements to support his version versions of events. 

e)	The Disciplinary Board made its decisions to find the plaintiff guilty of a disciplinary offence and to terminate his studies on the basis of witness statements, the contents of which were unknown to the plaintiff and he was given no opportunity to test.

30.     The Disciplinary Board was making decisions of immense significance, which had a direct bearing on the plaintiff’s education and life. The Board was obliged to make its decisions in compliance with the principles of natural justice: it had to be unbiased and impartial and conduct its proceedings fairly. Section 59 (principles of natural justice) of the Constitution enshrines the principles of natural justice in the law of Papua New Guinea in the following way: 

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

(2)	The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.
	
31.     I find that the Disciplinary Board failed in its duty to the plaintiff to act fairly and also in its duty to be seen to act fairly. This finding has immediate consequences under two of the key human rights provisions of the Constitution: Section 37(1) (protection of the law) and Section 41(1) (proscribed acts). 

32.     Section 37(1) states: 

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.

33.     Section 41(1) states: 

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

(a)	is harsh or oppressive; or
(b)	is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or
(c)	is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

 is an unlawful act.

34.     I find that the Disciplinary Board, by failing to adhere to the principles of natural justice, infringed the plaintiff’s human rights by: 

•	failing to afford to him the full protection of the law under Section 37(1) of the Constitution; and 

•	acting in a manner not warranted by the particular circumstances of the particular case contrary to Section 41(1)(b) of the Constitution.

4	WAS THERE ANY BREACH OF THE HUMAN RIGHTS OF ROVE OLK, BENJAMIN BOREWA OR AUGUSTINE NEETOH?

35.     I uphold the submissions of Mr Wak that the plaintiffs were dealt with in a manner that was procedurally unfair, in the following respects: 

a)	The charges that they faced were vaguely expressed and not drafted in the language of the disciplinary offences he was alleged to have committed. As in the case of Boson Wilson, the document containing the allegations was not described as a notice of charge or a notice of allegations or in any other simple and direct terms. It was called a “notice of consideration of disciplinary action”, which began with the confusing and indirect statement “I am advising you that I am considering recommending the taking of disciplinary action in relation to the following matters …” The charges presented to the plaintiffs were poorly drafted and defective, making it difficult for them to respond effectively to them. 

b)	The plaintiffs were given only two days to prepare for the hearing. This was not contrary to the disciplinary code (which required at least two days’ notice), but given the gravity of the charges and the potential consequences of being found guilty, it was insufficient notice. 

c)	They were not given copies of witness statements or the incident report relied on by the disciplinary board. 

d)	They were not given the opportunity to present witnesses or witness statements to support their version versions of events. 

e)	The Board made its decisions to find the plaintiffs guilty of a disciplinary offence and to terminate their studies on the basis of witness statements, the contents of which were unknown to the plaintiffs and they were given no opportunity to test. 

36.     I find that the Disciplinary Board failed in its duty to the plaintiffs to act fairly and also in its duty to be seen to act fairly. As in the case of Boson Wilson, I find that the Disciplinary Board, by failing to adhere to the principles of natural justice, infringed the plaintiffs’ human rights by: 

•	failing to afford to each of them the full protection of the law under Section 37(1) of the Constitution; and 

•	acting in a manner not warranted by the particular circumstances of their particular cases contrary to Section 41(1)(b) of the Constitution.

5	WHAT ORDERS SHOULD THE COURT MAKE?

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

38.     Section 57(3) states: 

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

39.     Section 58(2) states: 

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).

40.     I consider that it is necessary and appropriate to make declarations that the plaintiffs’ human rights were breached by the second defendant, the Divine Word University. It is not appropriate to declare that the first defendants, Mr Kekeya and Mr Ogi, breached the plaintiffs’ rights. Such a declaration might have been appropriate had they acted in bad faith but there is no evidence of that, so the declaration will be confined to the University, the institution on behalf of which the first defendants acted at all times.

41.    It follows from the declarations that the University will be ordered to reinstate the plaintiffs to their studies. Such an order is necessary and appropriate to enforce the human rights of the plaintiffs who have given evidence as to the serious impact the curtailment of their studies has had on their education and their lives including their personal aspirations, their future livelihoods and the hopes and expectations of their families. 

42.     As for damages, an entitlement arises under Section 58(2). However, I am not inclined to take the conventional approach and set a trial for assessment of damages. The primary remedy sought by the plaintiffs is their reinstatement to studies. They would like to be awarded damages but this is an ancillary claim. The best and most convenient and the fairest way to resolve the issue is to award notional damages, which I fix at the sum of K1,000.00 for each plaintiff. 

43.     The plaintiffs have engaged a private law firm to run this case, so costs will follow the event. 

REMARKS 

44.     Nothing in this judgment should be taken as a criticism of the University’s zero tolerance policy on alcohol. That is a matter for the University. However, the University must understand that when it seeks to enforce the policy it remains under a duty to at all times protect and enforce and not undermine the human rights of its students. The University and its functionaries must act fairly, adhere to the principles of natural justice, follow due process, ensure that students are given the full protection of the law and not act harshly or oppressively or in a way that is not warranted by the circumstances of a particular case. 

45.     These duties are of paramount importance as under the student disciplinary code the mandatory penalty for being found guilty of an alcohol-related offence is termination from studies, with no right of appeal. Decisions are being made of enormous significance to the students involved and to their families. Such decisions must be made carefully and at all times in compliance with the demanding, but fair, human rights standards set in the Constitution.  

ORDER 

(1)	It is declared under Section 57(3) of the Constitution that the second defendant breached the human rights of the plaintiffs by failing to adhere to the principles of natural justice enshrined in Section 59 of the Constitution and thereby failing to afford the plaintiffs the full protection of the law under Section 37(1) of the Constitution and dealing with the plaintiffs in a manner not warranted by the particular circumstances of their particular cases contrary to Section 41(1)(b) of the Constitution.

(2)	It is further declared under Section 57(3) of the Constitution that the decisions made by and on behalf of the defendants, to find the plaintiffs guilty of disciplinary offences and to terminate their studies, were unlawful acts for the purposes of Section 41(1)(b) of the Constitution and are accordingly null and void. 

(3)	It is ordered under Section 57(3) of the Constitution that the second defendant and its governing body and their functionaries shall take all necessary steps to ensure that the plaintiffs are reinstated as students in 2019 and are permitted to continue their studies at the same point at which their studies were terminated. 

(4)	It is declared under Section 58(2) of the Constitution that the plaintiffs, being persons whose rights protected by Division III.3 of the Constitution have been infringed by the defendants, are entitled to reasonable damages; and it is ordered under Section 58(3) of the Constitution that damages are awarded against the second defendant, being the person primarily responsible for the infringement  of rights, in favour of the plaintiffs in the sum of K1,000.00 each, to be paid within two months after the date of service of this order on the second defendant; and provided that those sums are paid within that time, no interest is payable on those sums. 

(5)	The second defendant shall pay the plaintiffs’ costs of the proceedings on a party-party basis which shall if not agreed be taxed.

(6)	Other relief sought in the originating summonses is refused. 

(7)	The proceedings are thereby determined and the files are closed. 

Judgment accordingly.
_______________________________________________________________
Bradley Wak Lawyers: Lawyers for the Plaintiffs 
G Haumu: Lawyer for the Defendants