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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS 518 OF 2009
BETWEEN:
MARTHINUS KAMBU for and on behalf of other 946 West Papua
Plaintiffs
AND:
SIR PITA LUS
First Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant
Waigani: Salika, DCJ
2010: 12 October
P RACTICE AND PROCEDURE – motion by first defendant to set aside orders of the Court restraining the first defendant from evicting the plaintiffs- first defendant as a private citizen allowed plaintiffs to settle at first- first defendant intends to develop land and therefore issued eviction notice- PNG government failed to meet international obligation as signatory to various refugee conventions - plaintiffs have no basis to be on private property except by the grace of the landlord - orders in terms of notice of motion filed on 26th October 2009 granted.
Counsel:
Mr T Yai, for the Plaintiffs
Mr B Frizzel, for the 1st Defendant
12 October, 2010
1. SALIKA DCJ: By a notice of motion filed on 26 October 2009 by the First Defendant through his lawyers, the First Defendant moved for orders that:-
" 1. Pursuant to O.12 r.8 of the National Court Rules made orders on or about 2 October 2009 be set aside.
2. Pursuant to O.12 r. 40 of the National Court Rules these proceedings be dismissed.
3. Such or other orders deemed necessary.
4. Costs
5. Time for entry of these orders be abridged to time of settlement by the Registrar which shall take place forthwith."
2. The facts in this matter are sensitive and perhaps needs the Executive Government's intervention and assistance. This is because while PNG is a signatory to international treaties and conventions, treaties and conventions do not form part of PNG laws pursuant to s.117 of the Constitution. Moreover, the United Nations, the body responsible for the plight of the refugees has not said or done much to help these people. Having said that I now go on to address the facts surrounding this matter.
3. The principle plaintiff Marthinus Kambu is originally from the West Papua Province of Indonesia. Documents on file show that he was granted PNG citizenship on 19 June 1992. There is no evidence as to whether the other plaintiffs have been granted citizenship by the government of PNG. I raise this because while Marthinus Kambu is a PNG citizen the others are not and therefore the obligation of the PNG government to these people as they appear to be refugees. Marthinus Kambu is not a refugee and therefore the United Nations Convention and Protocol on the Status of Refugees do not apply to him. His standing in PNG is different from the other plaintiffs who may be genuine refugees.
4. I understand from my own limited research that PNG is a signatory to the Convention and the Protocols Relating To The Status of Refugees. PNG signed that Convention on 17th July 1986. I also understand that when PNG signed the Convention and the Protocols it did so with certain reservations on some of the Articles. This means that when it signed, it said that the PNG government would not be obligated to provide or fulfil or comply with those articles. Some of the Articles it had reservations on were Articles 21, 22, 26, 31, 32, 34. I will reproduce those for the benefit of the refugees and the public because it is not easily accessible to the refugees themselves and the general public. The particular ones are:
Article 21: HOUSING
As regards housing, the Contracting States, in so far as the matter is regulated by laws or regulations or is subject to the control of public authorities, shall accord to refugees lawfully staying in their territory treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstance.
Article 22 (1) PUBLIC EDUCATION
The Contracting States shall accord to refugees the same treatment as is accorded to nationals with respect to elementary education.
Article 26 FREEDOM OF MOVEMENT
Each Contracting State shall accord to refugees lawfully in its territory the rights to choose their place of residence to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances.
Article 31 REFUGEES UNLAWFULLY IN THE COUNTRY OF REFUGEE
The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugee who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.
Article 32 EXPULSION
The Contracting State shall not expel a refugee lawfully in their territory save on grounds of national security or public order.
The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.
The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting State reserve the right to apply during that period such Internal measures as they may deem necessary.
Article 34 NATURALIZATION
The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.
5. The case before the court relates to some West Papuan refugees making private arrangements with a PNG landlord to temporarily settle on his land for some time. After some years of living on that land the landlord wanted to develop the land and requested the refugees to leave. The refugees refused to leave and the land lord took out an eviction order from the District Court for them to vacate the premises within a specific time. The time given by the District Court has lapsed.
6. The refugees filed a judicial review application to stay the eviction orders of the District Court and have also sought a declaration that the orders of the court are harsh and oppressive.
7. Although the parties never raised the issue of the obligation of the PNG government, I have raised it with counsel for the parties as to what was the status of the plaintiffs as to whether they are refugees or not and what the obligations of the PNG Government were, if any, to look after them and their interest.
8. The major issue raised in this case is the matter of housing and settlement of the refugees. Under Article 21 of the United Nations Convention and Protocols Relating To Status of Refugees, the Government of PNG is obliged to accord the refugees lawfully staying in PNG "treatment as favourable as possible". It would be nice if PNG was to build refugee facilities as the Australia Government did in Manus and Nauru to house its own refugees, but the PNG Government did not do anything like that and has not had the common decency to build such facilities presumably because it lacks funds to do that.
9. In Australia in recent times "boat people" as they are commonly referred to are put in care centres either on Christmas Island or on mainland Australia. They are then screened and their status ascertained as to whether they are genuine refugees or not.
10. In PNG there are no such screening places. PNG accepted the West Papuans as refugees. I stand to be corrected on this assumption. In any case as refugees that come or flee to PNG are West Papuans who are Melanesians, the same ethnic group as Papua New Guineans.
11. PNG is a signatory to certain International Conventions which I have already referred to. It must show its sincerity by providing the basic needs for the refugees. Otherwise, we can be branded as insincere.
12. Article 21 provides:
HOUSING
As regards housing, the Contracting States, in so far as the matter is regulated by laws or regulations or is subject to the control of public authorities, shall accord to refugees lawfully staying in their territory treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstance.
13. Under this provision the government is not obliged to build houses for the refugees but it has an obligation to accord refugees "treatment as favourable as possible". What does this mean? I think it means at least funding some land for these people to be settled on to provide a Care Centre for them. That to my mind is the least PNG can do. PNG has plenty of land to be able to do that.
14. In 2008 PNG became a signatory to the International Covenant on Economic Social and Cultural Rights (ICESCR) without making any reservations. Article 11 of the ICESCR recognises the right of everyone to an adequate standard of living.
15. Article 11 of ICESCR provides:
16. It would appear therefore that PNG while signing the 1951 Convention and Protocol with reservation signed the ICESCR without any reservations. In doing so PNG has taken a contradictory stand. By taking this stand, it is in my humble view that its stance renders the reservation to Article 21 nugatory and irrelevant.
17. The right to adequate housing is a basic human right recognised in international human rights law as part of the right to an adequate standard of living "according to the United Nations Paper Titled "The Right to Adequate Housing". PNG is not living up to its international expectations. The refugees are having a difficult life in PNG.
18. I am merely pointing these things out because I believe PNG has not attended adequately to the plight of genuine refugees and has failed miserably to adequately address the issue of housing and the issue of what "treatment as favourable as possible" means.
19. In this case Sir Pita Lus is a private citizen. He allowed the refugees to settle on his land. Now he wants them evicted because he wants to develop the land. The refugees have no other place to go to. The refugees however have Article 21 of the Convention and Protocols Relating to the Status of Refugees and also Article 11 of ICESCR to rely on to press the government of PNG to accord them better treatment as refugees and provide land for them to build houses or do something at least to house them. There is no point in PNG in signing these international conventions when it cannot deliver. It is a national and international disgrace and shame that PNG cannot deliver what it promised it would do. The inaction by the government portrays PNG as a people with no conscience. PNG is better than that. I urge the government to properly address these issues and improve its international relations and standing.
20. The plaintiffs were given two months to vacate the premises of Sir Pita Lus. On 2 October 2009 the National Court set aside orders of the Court and restrained Sir Pita Lus from evicting the plaintiffs. The application now is to set aside the orders of the Court made on 2 October 2009 and to dismiss the proceedings as being without any basis
21. I agree with the submissions of the lawyers for the First Defendant. The Plaintiffs have no basis to be on private property except by the grace of the landlord. The orders in terms of notice of motion filed on 26th October 2009 are granted.
22. In the meantime, I remind the government that it is obliged under Article 21 of the Convention and Protocols on Status of Refugees and Article 11 of ICESCR to find alternative land to settle and house the refugees.
________________________________
Kange Lawyers: Lawyers for the Plaintiffs
Warner Shand Lawyers: Lawyers for the Defendants
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URL: http://www.paclii.org/pg/cases/PGNC/2010/208.html