Enforcement of Basic Rights under the Constitution of the Independent State of Papua New Guinea, Section 57, In re [2020] PGNC 45; N8221 (19 February 2020)

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IN THE MATTER OF ENFORCEMENT OF BASIC RIGHTS
UNDER THE CONSTITUTION
OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA, SECTION 57

RE CIRCUMSTANCES OF BAN
ON HARVESTING, SALE, PURCHASE AND MARKETING OF FISH AND OTHER MARINE PRODUCE FROM
THE MARITIME WATERS OF MADANG PROVINCE
(“THE FISH BAN”)

HUMAN RIGHTS – Constitution, s 57 (enforcement of guaranteed rights and freedoms) – power and duty of National Court to inquire into, protect and enforce guaranteed rights and freedoms – own initiative inquiry into ban imposed by provincial government on harvesting, sale, purchase and marketing of fish – determination of who imposed the ban – whether ban imposed under any law – whether good and sound reasons for continuing ban –whether human rights of any persons will be infringed by continuation of ban.

The National Court took judicial notice of a ban imposed by or on behalf of a provincial government on the harvesting, sale, purchase and marketing of fish and other marine produce from the maritime waters of the province (the “Fish Ban”) and its apparent adverse effect on various persons and communities in the province. The Court invoked the power and duty in s 57(1) (enforcement of guaranteed rights and freedoms) of the Constitution to protect and enforce the human rights of those persons who appeared to have been adversely affected by the ban, by commencing proceedings on its own initiative that were in the nature of an inquiry into four questions: (1) Who imposed the Fish Ban? (2) Under what law was the Fish Ban imposed? (3) Are there good and sound legal and factual, especially scientific, reasons for continuing the Fish Ban? (4) Will any person’s human rights be infringed by continuation of the Fish Ban?

Buni Morua & 79 Others v China Harbour Engineering Company Ltd (2020) N8188
Nail Lamon v Snr Const Zakang Bumai (2008) N3468
Namah v Pato (2014) SC1304
Re Alleged Brutal Treatment of Suspects (2014) N5512
Re Circumstances of Alleged Detention of Asylum Seekers (2014) N5529
Re Conditions of Detention at Buka Police Lock-Up (2006) N4478
Re Conditions of Detention at Buka Police Lock-Up (2006) N4976
Re Conditions of Detention at Kimbe Police Lock-Up (2006) N3918
Re Conditions of Detention at Lakiemata Correctional Institution (2006) N5007
Re Human Rights of prisoners sentenced to death (2017) N6939
Re Release of Prisoners on Licence (2008) N3421
The State v Transferees (2015) SC1451

This was an inquiry by the National Court under Section 57 of the Constitution into the human rights implications of a fish ban.

T M Ilaisa, for the First Respondent
H Kila & N Taka, for the Second Respondent
J Bakaman for the Third Respondent
Sir Arnold Amet, the Fourth Respondent, in person
SMellombo, the Fifth Respondent, in person
B B Wak, for the Sixth Respondent
F Duadak, the Seventh Respondent, in person
S I Asivo, the Eighth Respondent, in person
A Kintau, the Ninth Respondent, in person
N Sawau, the Tenth Respondent, in person
E Utu, the Eleventh Respondent, in person
R Bosli, the Twelfth Respondent, in person
M Ronny, the Thirteenth Respondent, in person
M Lalu, the Fourteenth Respondent, in person

1. CANNINGS J: On 24 August 2019 there was a slurry spill into the sea at Basamuk Bay, Madang Province, apparently caused by a malfunction of the deep-sea tailings placement system of the Ramu Nickel-Cobalt Project. The spill was given wide media attention. Photos of the sea turning red and dead fish found floating in the sea were published. There was a great deal of public disquiet. People were concerned about the effect of the spill on the environment and on the fish stocks and on public health and safety. Questions were raised about whether it was safe to eat fish from the local area. Within a week or so of the spill it became public knowledge that Madang Provincial Government imposed a ban on the harvesting, sale, purchase and marketing of fish and other marine produce from the maritime waters of the province. This has become known as the “Fish Ban”.

2. In the period from September to December 2019 the Madang Provincial Government and a number of other governmental bodies including the National Fisheries Authority, the Conservation and Environment Protection Authority and the Mineral Resources Authority conducted investigations into the causes and the effect of the spill. The National Executive Council decided that the matter was of great public importance and directed the governmental bodies to inquire into the matter and report back on what action was required.

3. I am the Judge Administrator of Madang Province. I live in the community. As the weeks and months passed in the latter part of 2019 I took judicial notice of concerns expressed in the local community about the Fish Ban and the effect it was having on many people. The famous Madang Fish Market was closed. Madang’s restaurants were showing in their menus that fish was “Off Stock”. Fishermen were not going out to sea. It was general knowledge that the Fish Ban was being adhered to. Its effect seemed to spread the length of the coastline from Rai Coast District in the east (the border with Morobe Province) to Bogia District in the west (the border with East Sepik Province). Madang was the maritime province without fish.

4. No one challenged the Fish Ban in Court so on 8 January 2020 I decided on the own initiative of the National Court to commence proceedings under s 57(1) (enforcement of guaranteed rights and freedoms) of the Constitution, centred on the human rights implications of the Fish Ban. I conducted an inquiry into the matter and this judgment is the product of that inquiry. It is set out as follows:

5. Papua New Guinea’s Constitution enshrines a number of human rights, also known as Basic Rights and constitutional rights. They are principally drawn from the United Nations Universal Declaration of Human Rights. They are conferred by the following sections of the Constitution:

6. As I have said in previous cases, these are not paper rights or mere expressions of principle (Re Conditions of Detention at Kimbe Police Lock-Up (2006) N3918, Re Conditions of Detention at Buka Police Lock-Up (2006) N4478, Re Conditions of Detention at Buka Police Lock-Up (2006) N4976, Re Conditions of Detention at Lakiemata Correctional Institution (2006) N5007, Re Release of Prisoners on Licence (2008) N3421, Nail Lamon v Snr Const Zakang Bumai (2008) N3468, Re Alleged Brutal Treatment of Suspects (2014) N5512, Re Human Rights of prisoners sentenced to death (2017) N6939).

7. These are justiciable, legal rights. They can be enforced in the National Court and the Supreme Court, primarily under Section 57 but also under Sections 22, 23 and 155(4) of the Constitution.

8. Section 57(1) (enforcement of guaranteed rights and freedoms) is the provision I have invoked to initiate this inquiry. It provides:

A right or freedom referred to in this Division [III.3, Basic Rights]shall be protected by, and is enforceable in, the Supreme Court or the National Court ... either on its own initiative or on application by any person who has an interest in its protection and enforcement ... [emphasis added].

9. Section 57(1) gives jurisdiction to the National Court to protect and enforce rights and freedoms in two situations:

10. In The State v Transferees (2015) SC1451 the Supreme Court (Sakora J, Gavara-Nanu, Ipang J) held that the own initiative jurisdiction can only be exercised in existing proceedings. The Court expressed that opinion in the context of upholding an appeal against my decision not to disqualify myself from own-initiative 57(1) proceedings I had commenced into the human rights implications of the accommodation of asylum seekers at the Manus Island Regional Processing Centre (Re Circumstances of Alleged Detention of Asylum Seekers (2014) N5529). However, that opinion was expressed obiter dictum. I am not bound by it and I respectfully decline to follow it (Re Human Rights of prisoners sentenced to death (2017) N6939).

11. The opinion in The State v Transferees (2015) SC1451 does not reflect the preponderance of judicial opinion, which is that s57(1) means what it says: the Court can act on its own initiative. This important point was recognized by Kandakasi DCJ in the recent case of Buni Morua & 79 Others v China Harbour Engineering Company Ltd (2020) N8188, in which his Honour stated:

Based on these cases, we could safely come to the conclusion that the ability of the National Court or Judges with the endorsement of the Supreme Court in Ume More v University of Papua New Guinea [1985] PNGLR 401 (per Pratt, Amet and Los JJ) to act on their own initiative under s. 57 of the Constitution for the protection or the enforcement of the human rights is a well-established position in PNG. That ability to act on “its own initiative” comes to play either with a proceeding already before the Court as in Ume More or on a totally new court proceeding the Court itself initiates ...

12. Sections 22 and 23 are specifically directed at the National Court and reinforce the principle that that Court has an obligation to ensure that the Basic Rights are actually put into effect. The combined effect of these provisions is to authorise, and oblige, the National Court, if it identifies a case of apparent breach of the Basic Rights, to act on its own initiative to protect and enforce them. If it is satisfied that Basic Rights have been breached, it is empowered to:

13. This inquiry was commenced in accordance with Rule 8 (commencement of proceedings by the court) of the Human Rights Rules 2010 (Order 23 of the National Court Rules), which states:

14. The originating process, bearing the file reference HROI No 1 of 2020, was issued in Form 126 of the National Court Rules, in the following terms:

THE NATIONAL COURT, having taken judicial notice of the ban imposed by or on behalf of Madang Provincial Government on the harvesting, sale, purchase and marketing of fish and other marine produce from the maritime waters of Madang Province (the “Fish Ban”) and its apparent adverse effect on access by all persons and communities in the Province, especially coastal villagers, to customary food sources, which may impair the food security levels in the Province, and access to markets by those persons in the Province who depend on convenient and efficient marketing facilities for sale of fish and other marine produce to sustain their livelihoods, and having regard to the National Goals and Directive Principles, in particular National Goal No 1(4) (integral human development), which calls for every person to be dynamically involved in the process of freeing himself or herself from every form of domination or oppression and improvement in the level of nutrition and the standard of public health to enable people to attain self-fulfilment, and National Goal No 4(1) (natural resources and environment), which calls for Papua New Guinea’s natural resources and environment to be conserved and used for the collective benefit of all and wise use to be made of natural resources and the environment in the sea, UNDER SECTION 57(1) OF THE CONSTITUTION, COMMENCES THESE PROCEEDINGS on its own initiative to enforce the guaranteed rights and freedoms of those persons whose rights or freedoms may have been infringed, those rights and freedoms including:

AND FOR THE PURPOSES OF THESE PROCEEDINGS THE FOLLOWING PERSONS ARE UNDER SECTION 57(3) OF THE CONSTITUTION SUMMONED TO APPEAR BEFORE THE NATIONAL COURT AT MADANG ON 31 JANUARY 2020 AT 1.30 PM so that the National Court may inquire into this matter, and in particular determine:

And also determine whether it is necessary or appropriate to make further orders or declarations for the purposes of enforcement of Basic Rights under Section 57(3) of the Constitution:

AND TAKE NOTICE that failure by any person summoned to comply with this order may be deemed to be contempt of court and expose the person who fails to comply to the sanctions of the criminal law, including arrest, fine and/or imprisonment.

AND FURTHERMORE take notice that any person who claims a legitimate and genuine interest in this matter is invited to appear before the National Court, at the above place and time, and seek the leave of the Court to be joined in these proceedings.

15. Hearings have been conducted on three different days in Madang. On Friday 31 January 2020 the inquiry was formally commenced. Directions were given as to the conduct of the proceedings and leave was granted to 14 parties to join the proceedings, referred to as respondents. The order of 31 January 2020 was in the following terms:

16. On Friday14 February 2020 all respondents (except for the sixth respondent, who had parliamentary commitments in Port Moresby) appeared and each respondent (or a senior public official on behalf of the governmental bodies which were respondents) gave sworn evidence. Opportunity was provided for each witness to be cross-examined. This hearing lasted more than four hours.

17. On Tuesday 18 February 2020 the court heard further oral evidence from the Madang Provincial Administrator. Submissions were then made by or on behalf of each of the respondents.

18. It is a pleasing part of this case that all parties have been active participants. Evidence has been given by or on behalf of each respondent. Submissions have been made by or on behalf of each respondent. All senior public officials summoned to attend and give evidence have complied with the summons and cooperated fully.

No	Witness	Description
1	Joseph Kunda Bonomane	Acting Madang Provincial Administrator, the most senior officer of Madang Provincial Government (1^st respondent)
He and the provincial government had to take steps quickly after the slurry spill of 24 August 2019 to act in the best interests of the people of Madang – the national government agencies, especially the NFA and CEPA, did not appreciate the urgency of the situation – they were slow to react and slow to come to Madang to carry out tests – it was decided to engage the services of a mining and environmental science specialist, Dr Alex Mojon, of Switzerland, to carry out an investigation and report – Dr Mojon had already conducted sampling of the waters of Basamuk Bay in May 2019 (before the slurry spill) and the results of tests obtained were alarming – it was reasonably to be expected that the results of tests carried out after the spill would be of even greater concern –Dr Mojon has not yet delivered the final report of his post-spill investigation. He (Mr Bonomane) and a team of senior managers and advisers in the provincial administration made the decision soon after the slurry spill that it was necessary to put the Fish Ban in place, to protect public health and safety – the decision was not made by the provincial executive council or by the Governor, Hon Peter Yama MP–it was made by himself and his senior management team. He is still waiting for reports to be given to him by the NFA and CEPA – they have not been cooperative and ever since the spill have been slow to assist. He considers that unless and until final scientific reports are available, it is too risky to lift the Fish Ban.
2	John Edward Kasu	Managing Director, National Fisheries Authority (2^nd respondent)
The NFA takes seriously its statutory duty to engage in regular environmental monitoring of all fishing grounds of PNG including the maritime waters of Madang and in particular Basamuk Bay – the NFA conducted a scientific survey of the seawaters of Basamuk Bay in September 2019, to check for presence of heavy metals – a preliminary report was finalised in early November 2019 and showed that except for sedentary marine species that inhabit the sea bed such as sea cucumbers, heavy metal concentration was within permissible limits for safe human consumption –a further extensive study was undertaken in collaboration with CEPA, MRA, the Madang Provincial Government and the National Agriculture Quarantine and Inspection Authority (NAQIA) – the results of that extensive survey, which has entailed samples being dispatched to laboratories in Australia and Singapore, are expected to be available within a matter of weeks. The NFA did not impose the Fish Ban and at no stage recommended that there should be a Fish Ban – there is no scientific basis for the Fish Ban.
3	Michael Wau	Director, Non-renewable Resources (Mining, Oil & Gas Sector), Conservation and Environment Protection Authority (3^rd respondent)
CEPA took immediate action after the slurry spill, collecting water samples at Basamuk Bay and sent to Australia for analysis – by mid-September 2019 the results had been returned and comparisons were made with the baseline studies underpinning the grant of the environment permit for the project operator – results showed that the conditions of the environment permit were not breached – CEPA subsequently engaged an independent expert team to undertake sampling to establish heavy metal concentration in the shoreline and the benthic sediments of Basamuk Bay – the report is expected to be completed within the next three weeks. His preliminary opinion is that the adverse effect of the slurry spill was confined to the impact area.CEPA was not asked for advice on whether the Fish Ban should be imposed – CEPA did not recommend any Fish Ban – there is no need for it, in his view.
4	Sir Arnold Amet	Senior Statesman, representing people of Nagada community, Madang District (4^th respondent)
The Fish Ban has had an enormous impact on the fishing communities in the area around Nagada and Riwo – local people depend on selling fish for income support, especially at this time of the year when school fees are a big problem.
5	Sama Mellombo	Chairman, Basamuk Landowners Association (5^th respondent)
The Fish Ban has seriously affected coastal communities – though the Basamuk people are concerned about the slurry spill and the use of their traditional land was the Ramu Nickel-Cobalt project, the Fish Ban has had a big, unexpected impact on their lives.
6	Frank Duadak	Representative of Madang Lagoon Association and people of Riwo village, Madang District (7^th respondent)
The people of his association are frustrated as when the Fish Ban was announced, they were told it was a temporary measure – but there has been little or no communication by the Provincial Government since November 2019 – people don’t known when the Fish Ban will end or why it has been continuing for six months – his people rely on fish to earn money – especially for people in his area, they have little land as it was taken from them by the Colonial Administrations and the Missions – the sea is their livelihood and the Provincial Government has taken it away from them.
7	Steven Asivo	Representing fish consumers of Madang (8^th respondent)
The provincial government panicked in imposing the Fish Ban and the panic has spread throughout the province – people have been told not to swim in the sea and not to consume any fish – but fish is an integral part of the diet of coastal people – their food sources have been removed, and there has been no replacement of it, and no information has been given as to why the Fish Ban is necessary – Madang fish consumers have been denied their human rights.
8	Alois Kintau	Representing people of Manam Island, Bogia District (9^th respondent)
Manam Island people have been progressively displaced since the volcanic eruptions of 2004 – they have been dispersed to four care centres – the Fish Ban has exacerbated their hardship.
9	Nelson Sawau	Councillor Ward 14, Ambenob Local-level Government, Madang District (10^threspondent)
His constituents rely on fishing as their major income source – the people are suffering – they don’t understand why the Fish Ban is necessary and why it has gone on for so long – they have not heard about any PEC decision – they just get told they cannot sell their fish.
10	Eddie Utu	Representing people of Kurumbukari, Usino-Bundi District (11^th respondent)
He comes from the mine site – his people want stability – they want to know what is going on, so that the people around the mine and the coastal people are safe.
11	Raymond Bosli	Representing people of Kranket Island, Madang District (12^th respondent)
Fish is their main protein source and their main income source – the Fish Ban has affected their physical health and their economic well-being – the Fish Ban has caused fear, anxiety, confusion – they want to be told the truth: was there any need for the Fish Ban in the first place? Is it necessary for it to continue?
12	Mathew Ronny	Representing people of Long Island and Coastal Atolls, Rai Coast District (13^th respondent)
The Fish Ban has had an enormous adverse effect on himself and other members of his fishing co-operative – in September he brought a big load of fish caught around Long Island to Madang town, only to find that the Fish Market had been closed down – the NFA has not assisted them – no one is telling them what is happening.
13	Malagu Lalu	Representing people of Bilbil village, Madang District (14^th respondent)
His people were told by Dr Mojon, when he visited their village, that their sea was contaminated and they should not swim or dive in it, or catch fish or consume fish from it – they should not even use the clay for their pottery – Governor Yama announced on 3 October that the provincial government had decided that the Fish Ban was necessary to protect the people of Madang, but it is hurting the people of his village – their food and income has been cut off, but no one has offered to provide them with alternatives.

20. The decision to impose the ban was made by a group of managers in the provincial administration, headed by the provincial administrator, with the tacit approval of the Governor, on behalf of the provincial government.

21. No formal decision has been made by any public official or authority. Nothing is documented. No formal public announcements have been made.

22. The provincial government and its officers involved in the decision to impose the ban did not purport to rely on any law that gave them authority to make the decision. The decision was motivated by a concern for public health and safety arising from a spillage in the sea of tailings and slurry from a mine and refinery.

23. In his oral testimony Mr Bonomane made vague and unconvincing references to the Organic Law on Provincial Government and Local-level Governments to justify the decision. His counsel, Mr Ilaisa, attempted to put words in his mouth when Mr Bonomane was giving evidence, trying to rationalise the decision in terms of the Disaster Management Act. But none of the provisions of that Act were invoked here.

24. There is no law that supports the decision to impose the Fish Ban, which was made ultra vires.

3 Are there good and sound legal and factual, especially scientific, reasons for continuing the Fish Ban?

25. No. There are no good and sound legal or factual reasons, including scientific reasons, to continue the ban. The representatives of NFA and CEPA have given clear evidence that neither of those agencies advised on the Fish Ban. They were not consulted. The Fish Ban was not imposed by them. The scientific information available to them does not provide sufficient basis for the Fish Ban.

4 Will any person’s human rights be infringed by continuation of the Fish Ban?

26. Yes. The economic and social effect of the Fish Ban is great. This was clearly apparent from the evidence of many of the respondents. The coastal communities of Madang depend on fish as a food source and income source.

27. Continuation of the ban will infringe the human rights of all persons in the province who harvest, sell, purchase, market and/or consume fish or other marine produce, especially those who rely on fish and other marine produce for their livelihood, in three respects:

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

(d) may be prevented from doing anything that complies with the provisions of paragraphs (a) and (b).

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.

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—

(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,

31. Inspiration is provided by the Constitution. As the Supreme Court emphasised in Namah v Pato (2014) SC1304 the Constitutional Laws of Papua New Guinea are not simply statements of general principle. They impose and confer real and enforceable powers, functions, duties and responsibilities, which exist by operation of the Constitution, without the need for supporting, machinery or procedural laws to bring them into effect. This principle is reinforced by a bundle of enforcement provisions, especially Sections 11(2), 22, 23 and 57:

The provisions of this Constitution and of the Organic Laws are self-executing to the fullest extent that their respective natures and subject-matters permit.

The provisions of this Constitution that recognize rights of individuals (including corporations and associations) as well as those that confer powers or impose duties on public authorities, shall not be left without effect because of the lack of supporting, machinery or procedural laws, but the lack shall, as far as practicable, be supplied by the National Court in the light of the National Goals and Directive Principles, and by way of analogy from other laws, general principles of justice and generally-accepted doctrine.

(1) Where any provision of a Constitutional Law prohibits or restricts an act, or imposes a duty, then unless a Constitutional Law or an Act of the Parliament provides for the enforcement of that provision the National Court may—

(a) impose a sentence of imprisonment for a period not exceeding 10 years or a fine not exceeding K10,000.00; or

(b) in the absence of any other equally effective remedy under the laws of Papua New Guinea, order the making of compensation by a person (including a governmental body) who is in default,

or both, for a breach of the prohibition, restriction or duty, and may make such further order in the circumstances as it thinks proper.

(2) Where a provision of a Constitutional Law prohibits or restricts an act or imposes a duty, the National Court may, if it thinks it proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty, and Subsection (1) applies to a failure to comply with the order as if it were a breach of a provision of this Constitution.

(3) Where the National Court considers it proper to do so, it may include in an order under Subsection (2) an anticipatory order under Subsection (1).

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).

Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

37. The Fish Ban is unlawful. It has been imposed without any proper legal or factual basis. Its implementation has infringed human rights of many people. Declarations to that effect will be made. The Fish Ban must be uplifted. Several respondents applied for damages but this is not an appropriate case for an award of damages. A claim for damages must be determined on the facts of a particular case. And the person against whom damages is sought must be given a right to be heard. Mr Wak, of counsel submitted that the court should order Madang Provincial Government to issue a public apology for the Fish Ban. However, that sort of relief, like the claim for damages, is much better considered in separate proceedings. The respondents and other persons affected by the Fish Ban have the option available of commencing fresh proceedings. They should seek legal advice and consider, in particular, the requirements of the Claims By and Against the State Act.

38. It is declared and ordered, pursuant to Sections 22, 23(2), 57(3) and 155(4) of the Constitution, as follows:

Judgment accordingly.
___________________________________________________________
Thomas More Ilaisa Lawyers: Lawyers for the First Respondent
NFA Legal Division: Lawyers for the Second Respondent
Solicitor-General: Lawyer for the Third Respondent
Bradley Wak Lawyers: Lawyers for the Sixth Respondent

National Court of Papua New Guinea

Enforcement of Basic Rights under the Constitution of the Independent State of Papua New Guinea, Section 57, In re [2020] PGNC 45; N8221 (19 February 2020)