National Court of Papua New Guinea

Honourable members – the time has arrived for our people (through their leaders) of today – leaders in this institution – the Parliament – to clearly establish, define and promote the unity of our people on one single ideology or faith. And so we (Parliament House Committee) made a decision to promote our unity on the common ideal of the Christian faith.

We naturally arrived at this because not a single one of us (leaders) would deny that we as an Independent Nation State, upon proclaiming independence declared and adopted the Christian Principles to be the guiding principles together with those of our ancestor’s noble traditions. ...

In exercising its function to approve maintenance of the Parliament building infrastructure, the House Committee reviewed the features of the Parliament house, its furniture, fittings and decoration and adornments.

The House Committee noted that the Mask Lintels and the Totem Pole have been featured prominently in the architecture of the Parliament building for many years. Although they were intricately carved and form part of this iconic infrastructure, they seem to carry offensive and inappropriate messages. They also occupied prominent positions at the main entrance and in the Grand Hall, which are the most strategic places where we could put a symbol conveying the message of our national ideal, national identity and unity. Therefore, the Committee resolved that they be replaced with a more relevant and meaningful object that conveys the right message.

It is the intention of the Committee to give prominence to the Christian faith as the accepted ideal upon which the guaranteed and strongest unity of these diversified people will rest into the future. We intended to utilize the monumental building infrastructure of Parliament to promote the ideal to the Nation and give this Nation its true identity as a Christian Nation.

In place of the Mask Lintel we intend to place a meaningful and relevant text from the Bible and in place of the Totem Pole a new monument will be built on a foundation of stone representing the infinite and eternal Word of the living God. On the column leading to the top, we will inscribe the word – ‘unity’ in all the 800 plus languages or our diversified nation. It will feature an eternal flame at the top representing the eternal presence and direction of the Holy Spirit of God over the nation of PNG.

42. In conclusion, the Speaker stated:

I am grateful to the LORD GOD ALMIGHTY in that the conviction of the hearts of our leaders in the House Committee has brought the nation to this point of decision.

It is a moment for reflection, a defining moment, it is time Papua New Guinean leaders suspend their labour or vacation and ask ourselves the question – who are we, where have we come from, how did we get thus far and where are we going?

Today, we have reached a point in time for decision.

Honourable Members let us not dwell in the valley of indecision. As leaders we are expected to think and make decisions. Therefore the House Committee made a bold decision and only time and history will judge us.

43. Today is the day of reckoning.

Joshua 24:15: But if serving the LORD seems undesirable to you, then choose for yourself this day whom you will serve, whether the Gods your forefathers served beyond the river or the Gods of the Amorites, in whose land you are living. But as for me and my household – we will serve the Lord.

May God bless you ALL!

March 2014

44. On 8 March 2014 the plaintiffs, Sir Michael Somare and Dr Moutu, commenced the present proceedings, OS (HR) No 5 of 2014, in the National Court.

August 2014

45. On 17 August 2014 Justice Kariko, sitting in the National Court, upheld a motion by the defendants and dismissed the initial proceedings commenced by Sir Michael Somare, OS (HR) No 834 of 2013. His Honour ruled that Sir Michael had not given notice to the State of his intention to commence proceedings against it by way of enforcement of constitutional rights; therefore the proceedings could not be sustained (Grand Chief Sir Michael Somare MP v Theo Zurenuoc, Speaker of the National Parliament & 3 Others, OS (HR) No 834 of 2013, 17.08.14, unreported).

Removal of objects

46. The defendants appear to have taken the view that the effect of dismissal of those proceedings was to dissolve the interim injunction of 31 December 2013, restraining the further dismantling of the totem pole.

The totem pole has subsequently been totally dismantled and removed. As with the 19 masks removed from the lintel, there is no evidence as to the location of the totem pole or its condition or whether it still exists in any identifiable form or whether it has been irredeemably destroyed. The plaintiffs have not, in the present proceedings, sought any interim orders for its protection or preservation.

47. The Speaker did not prior to ordering the removal of masks or the totem pole raise the matter formally in the Parliament and did not seek the approval of the artists who created and curated and installed those objects.

2015

48. The trial of the present proceedings took place at Waigani. Evidence was received on 25 March 2015 and the parties made their submissions on 1 May 2015.

49. That concludes my factual findings. I will now address the five issues identified earlier.

1. DO THE PLAINTIFFS HAVE STANDING TO COMMENCE AND MAINTAIN THE PROCEEDINGS?
   

50. The defendants argue that the proceedings should be dismissed without considering the merits of the plaintiffs’ case as neither plaintiff has standing (locus standi) to seek the relief being sought.

51. Sir Michael Somare, though he is the Governor of East Sepik Province, was in no position to say that he represents the people of his province and he has given no evidence that he has commenced the proceedings with the authority of the provincial executive council. As for Dr Moutu, he has commenced the proceedings in his capacity as Director of the National Museum and Art Gallery but has failed to show that he represents the Museum or that he has the authority of the Board of Trustees of the Museum under the to commence the proceedings. Neither plaintiff is directly or personally affected by the actions that they seek to restrain. Neither plaintiff has any special interest in the subject matter of the proceedings. Therefore they lack standing.

52. That is how I understand the defendants’ arguments on standing. I reject these arguments, for three reasons.

(a) These are not representative proceedings

53. The plaintiffs did not commence these proceedings as representative proceedings. They do not claim to be bringing the proceedings on behalf of other people. Sir Michael does not say that he commenced the proceedings on behalf of the people of East Sepik Province or any other group. Dr Moutu does not say that he commenced the proceedings on behalf of the Museum or the members of its board or any other group. They each commenced the proceedings in their own names, as individuals. The question of whether they had the authority of others to commence the proceedings is irrelevant. They did not have to get anyone’s approval. Nor did they need to comply with the special procedural requirements for commencing representative proceedings (such as those set out in Simon Mali v The State (2002) SC690 and Tigam Malewo & Ors v Keith Faulkner, Ok Tedi Mining Ltd & 3 Ors (2009) SC960).

(b) Not necessary to prove direct or personal effect

54. The fact that neither plaintiff is directly or personally affected by the removal of the objects of cultural decoration does not mean that they lack standing. The question of whether a plaintiff has standing is determined according to the nature of the proceedings that have been commenced, not solely on whether the plaintiff has a direct or personal or proprietary interest in the outcome. For example:

(i) If a person makes an application in the Supreme Court under Section 18(1) of the Constitution regarding the interpretation or application of a Constitutional Law thequestion of whether the applicant has standing is determined according to the rules of the underlying law formulated in Re Petition of MT Somare [1981] PNGLR 265(recently adopted in Belden Norman Namah MP v Rimbink Pato MP, National Executive Council & The State (2014) SC1304 and Application by Ila Geno (2014) SC1313). The applicant will have standing if he or she has a sufficient interest in the matter. This is demonstrated if the applicant has personal interests or rights that are directly affected by the subject matter of the application, is a citizen who has a genuine concern for the subject matter of the application or is the holder of a public office, the functions of which relate to the subject matter of the application. Also, the applicant must raise significant (not trivial, vexatious, hypothetical or irrelevant) constitutional issues and not be a busybody meddling in other people’s affairs or engaged in litigation for some improper motive, eg as a tactic of delay.

(ii) If a person wishes to apply for judicial review of an administrative decision, leave must first be obtained under Order 16 of the National Court Rules. One of the requirements for the grant of leave is that the applicant demonstrate, under Order 16, Rule 3(5), that he or she “has a sufficient interest in the matter to which the application relates”. The Supreme Court has addressed the criteria to be considered in deciding the question of “sufficient interest” in NTN Pty Ltd v Board of Post and Telecommunications Corporation [1987] PNGLR 70, Nakun Pipoi v Seravo (2008) SC909, Helifix Group of Companies Ltd v PNG Land Board (2012) SC1150 and Pepi Kimas v Boera Development Corporation (2012) SC1172. The applicant must show a genuine or legitimate interest in the decision that is sought to be reviewed.

(iii) If a person applies to the Supreme Court or the National Court under Section 57(1) of the Constitution for enforcement of a right or freedom referred to in Division III.3 (basic rights) of the Constitution, the standing requirements are very broad. Section 57(1) provides that “any person who has an interest in ... the protection and enforcement” of that right or freedom will have standing; and Section 57(2) provides that the such persons include “any other persons with an interest (whether personal or not) in the maintenance of the principles commonly known as the Rule of Law such that, in the opinion of the court concerned, they ought to be allowed to appear and be heard on the matter in question” (Re Miriam Willingal [1997] PNGLR 119).

(iv) If a person applies to the National Court for an injunction or declaration or other relief based on the alleged breach of any law (not being a Constitutional Law) the standing requirements are also rather broad. The Supreme Court made this clear in Ken Mondiai v Wawoi Guavi Timber Company Ltd (2007) SC886, in particular where the decision or action complained of is that of a public body. The Court held that the following questions are relevant in determining whether a plaintiff has standing, on the basis that those that are answered in the affirmative will weigh in favour of the plaintiff having standing:

Is the party complained of a public body?

Does it have duties to perform at law, ie statutory duties?

What is the nature of the alleged breach of duty, are they duties in law or do they fall within managerial or administrative guidelines for decisions to be taken within a lawful discretion?

What is the [applicant’s] relationship to the subject matter of the duty alleged to have been breached?

Is the party bringing the complaint genuinely concerned, or a mere busybody?

Does the complainant point to some duty in law which objectively has ... not been observed?

55. The present proceedings are a combination of two of the above forms of action: (iii) and (iv). As to (iii), the plaintiffs have commenced proceedings for enforcement of the right to freedom of conscience, thought and religion conferred by Section 45 of the Constitution. The proceedings are to that extent being brought under Section 57(1) of the Constitution. For the plaintiffs to have standing, the Court needs to be satisfied that they are persons with an interest in the maintenance of the principles commonly known as the Rule of Law such that, in the opinion of this court, they ought to be allowed to appear and be heard on the matter in question.

56. I am satisfied in relation to Sir Michael Somare as he was a member of the House of Assembly for seven years, including two years as Chief Minister, prior to Independence, Chairman of the Constitutional Planning Committee, the country’s first Prime Minister and closely involved in the process of overseeing the design and building of Parliament House, including the prominent placement of the objects of cultural decoration the subject of these proceedings. He is the only person who has been a member of the Parliament for a continuous period of 40 years since Independence. There is no doubt as to the genuineness of his concern as to the removal of the 19 masks and the totem pole.

57. I am also satisfied that Dr Moutu has an interest in maintenance of the Rule of Law such that he ought to be allowed to appear and be heard on the question of whether the Speaker’s actions amount to a breach of the constitutional right to freedom of conscience, thought and religion. He is the head of a governmental body, established by the National Museum and Art Gallery Act 1992.Its statutory functions include protecting and conserving the cultural heritage of Papua New Guinea and administration of the National Cultural Property (Preservation) Act. He has academic qualifications in philosophy and anthropology from the University of Papua New Guinea and the University of Cambridge (United Kingdom). There is no doubt as to the genuineness of his concern about the removal of the 19 masks and the totem pole.

58. As to (iv), the plaintiffs have applied to the National Court for injunctions and declarations based on the alleged breach of a particular law, the National Cultural Property (Preservation) Act, by a public official, the Speaker. The question of whether they have standing is to be determined according to the criteria outlined by the Supreme Court in Ken Mondiai v Wawoi Guavi Timber Company Ltd (2007) SC886. I consider that:

• yes, the party complained of (the Speaker) is a public official;
• yes, the Speaker has statutory and constitutional duties to perform;
• yes, the Speaker is alleged to have breached his duty to comply with the provisions of a particular Act of the Parliament, not the breach of mere administrative guidelines;
• yes, each of the plaintiffs has a direct relationship to the subject matter of the alleged breach of duty, the removal of the masks and the totem pole: Sir Michael Somare, because he was directly involved in their design and creation; Dr Moutu, as the preservation of national cultural property is an integral part of his professional life and performance of his statutory powers and functions;
• yes, the plaintiffs have a genuine concern for the lawfulness of the Speaker’s actions, they are not mere busybodies;
• yes, the plaintiffs point to a duty in law which objectively has not been observed, the duty under the National Cultural Property (Preservation) Act not to destroy, damage or deface national cultural property.

(c) Plaintiffs each have a special interest

59. To the extent that it is necessary for them to show a “special interest” in the subject matter of these proceedings, I am satisfied that each plaintiff has done that. Their special interests arise from their special positions in the community, and their respective long-term commitments to the preservation and promotion of the cultures of the peoples of Papua New Guinea.

Conclusion as to issue (1): whether the plaintiffs have standing

60. Both plaintiffs have standing to commence and maintain these proceedings. Both have a genuine and legally sufficient interest in the subject matter of the proceedings. The fact that neither plaintiff is directly or personally affected by the removal of the objects of cultural decoration, does not mean that they lack standing. They each satisfy the standing requirements for commencement of proceedings under Section 57(1) of the Constitution, and under the general law for breach of an Act of the Parliament.

2. HAS THERE BEEN ANY BREACH OF THE RIGHT TO FREEDOM OF CONSCIENCE, THOUGHT AND RELIGION UNDER SECTION 45 OF THE CONSTITUTION?
   

61. The plaintiffs assert that the Speaker’s actions in removing the masks and the totem pole violate the right to freedom of conscience, thought and religion in Section 45 of the Constitution. The defendants respond that this is a vague claim and pose the valid questions: Whose rights have been infringed? And how? The defendants assert that there is no evidence that the plaintiffs’ religious rights or freedoms have been infringed, and no other persons have come forward to claim a breach of their religious rights or freedoms. They assert that the plaintiffs have failed to demonstrate how anyone’s religious rights have been offended.

62. To appreciate the competing arguments it is necessary to put Section 45 in context. It is one of a bundle of provisions in Division III.3 (basic rights) of the Constitution that confers human rights or Basic Rights on individuals. Division III.3 confers 18 types of human rights:

1. right to freedom (s 32);
2. right to life (s 35);
3. freedom from inhuman treatment (s 36);
4. protection of the law (s 37);
5. proscribed acts (s 41);
6. liberty of the person (s 42);
7. freedom from forced labour (s 43);
8. freedom from arbitrary search and entry (s 44);
9. freedom of conscience, thought and religion (s 45);
10. freedom of expression (s 46);
11. freedom of assembly and association (s 47);
12. freedom of employment (s 48);
13. right to privacy (s 49);
14. right to vote and stand for public office (s 50);
15. right to freedom of information (s 51);
16. right to freedom of movement (s 52);
17. protection from unjust deprivation of property (s 53);
18. equality of citizens (s 55).
    

63. Section 45 states:

(1) Every person has the right to freedom of conscience, thought and religion and the practice of his religion and beliefs, including freedom to manifest and propagate his religion and beliefs in such a way as not to interfere with the freedom of others, except to the extent that the exercise of that right is regulated or restricted by a law that complies with Section 38 (general qualifications on qualified rights).

(2) No person shall be compelled to receive religious instruction or to take part in a religious ceremony or observance, but this does not apply to the giving of religious instruction to a child with the consent of his parent or guardian or to the inclusion in a course of study of secular instruction concerning any religion or belief.

(3) No person is entitled to intervene unsolicited into the religious affairs of a person of a different belief, or to attempt to force his or any religion (or irreligion) on another, by harassment or otherwise.

(4) No person may be compelled to take an oath that is contrary to his religion or belief, or to take an oath in a manner or form that is contrary to his religion or belief.

(5) A reference in this section to religion includes a reference to the traditional religious beliefs and customs of the peoples of Papua New Guinea.

64. Like many of the other provisions of Division III.3, Section 45 confers a number of freedoms and protections, properly regarded as distinct human rights. Subject to the exceptions and qualifications contained within it, Section 45 confers on all persons in Papua New Guinea (including non-citizens) eight distinct human rights. Every person has the right to:

1. freedom of conscience, thought and religion (s 45(1));
   
2. practise his or her religion and beliefs (s 45(1));
   
3. manifest and propagate his or her religion and beliefs (s 45(1));
   
4. not be compelled to receive religious instruction (s 45(2));
   
5. not be compelled to take part in a religious ceremony or observance (s ); 2)r>
6. protection against unsolicited intervention into his or her religious affairs ټ&##160;; by a persoperf n of a difa difa different belief (s 45(3));
   
7. protection against attempts by other persons to force their religion (or &#16 &##160;; ir60;irreligion) on, hemhary harassment or otherwise (s 45(3));
   
8. he was simply enforcing the constitutional dominance of Christianity and the principle that Papua New Guinea is a Christian nation;
   
2. he had the constitutional authority of the Speaker;
   
3. his actions were sanctioned by the House Committee.
   

1 PNG is a Christian nation

75. The Speaker contends that Christianity is the only valid religion capable of unifying the diverse cultures of Papua New Guinea, and that its central and dominant role as a unifying force, is sanctioned and required by the Constitution. He relies on the Preamble, the first two paragraphs of which state:

WE, THE PEOPLE OF PAPUA NEW GUINEA—

• united in one nation
• pay homage to the memory of our ancestors—the source of our strength and origin of our combined heritage
• acknowledge the worthy customs and traditional wisdoms of our people—which have come down to us from generation to generation
• pledge ourselves to guard and pass on to those who come after us our noble traditions and the Christian principles that are ours now.
  

By authority of our inherent right as ancient, free and independent peoples

WE, THE PEOPLE, do now establish this sovereign nation and declare ourselves, under the guiding hand of God, to be the Independent State of Papua New Guinea.[Emphasis added.]

76. I take judicial notice of the fact that Christianity is a world religion that is, in its various forms, practised by more people in Papua New Guinea than any other religion. However, to argue that it deserves special status as the dominant religion or to say that that status justifies the notion that ‘Papua New Guinea is a Christian nation’ are contentious propositions that are not borne out by the Constitution.

77. It is true that Christianity is given prominence in the Preamble. The People of Papua New Guinea have pledged to guard and pass on to those who came after them, “the Christian principles that are ours now”, and declared themselves to be the Independent State of Papua New Guinea “under the guiding hand of God”. However, three observations must be made about the effect of those statements.

78. First, they must be read in the context of the Preamble, which gives similar prominence to the customs and traditions of the past. Secondly the words “Christian” and “God” and their derivatives do not appear elsewhere in the Constitution. Thirdly, such general statements in the Preamble do not have the effect of neutralising the constitutional imperative created by Section 45 of the Constitution: that freedom of conscience, thought and religion is an enforceable human right.

79. I find that the Speaker’s view of Christianity being the dominant religion and that Papua New Guinea being a Christian nation do not, in constitutional terms, justify his actions.

2 Constitutional authority of Speaker

80. The Speaker relies on Section 108(1) (functions of the Speaker and Deputy Speaker) of the Constitution, which states:

The Speaker is responsible, subject to and in accordance with the Constitutional Laws, the Acts of the Parliament and the Standing Orders of the Parliament, for upholding the dignity of the Parliament, maintaining order in it, regulating its proceedings and administering its affairs, and for controlling the precincts of the Parliament as defined by or under an Act of the Parliament.

81. The Speaker contends that by removing the objects of cultural decoration the subject of these proceedings he is “upholding the dignity of the Parliament”. However, that is a general source of authority and it is subject to the specific dictates of other provisions of the Constitution, including Section 45. His power to take steps to uphold the dignity of the Parliament does not extend to taking steps that offend against the human rights of other persons, particularly persons who have been encouraged and invited to exercise in the Parliament the freedom of their religion, including especially their traditional religious beliefs and customs as indigenous Papua New Guineans.

3 Role of the House Committee

82. The Speaker maintains that his decision to remove the objects of cultural decoration the subject of these proceedings was not unilateral. He was acting on behalf of the House Committee, which is an extension of the Parliament, which made a carefully considered decision following extensive research and deliberation.

83. I find that on the evidence put before the Court that is not an accurate description of the decision-making process that took place. The House Committee considered the question of removal of the objects at only one meeting – the meeting of 22 October 2012. There was no research or discussion paper put to the meeting, which was attended by only the Speaker and two other MPs. The objects earmarked for removal were not identified. The architectural and symbolic significance of removing the totem pole – a large and substantial structure, with a commanding presence in the Grand Hall – was not mentioned.

84. Significantly, the decision of the House Committee was not subject to debate in the Parliament, and there is no evidence that it was notified to the Parliament. I therefore find no justification in the House Committee’s decision for the apparently unconstitutional actions of the Speaker.

Conclusion as to issue (2): whether Section 45 of the Constitution was breached

85. The Speaker’s actions interfered with the religious freedoms of the creators and curators of the objects of cultural decoration the subject of these proceedings, contrary to Section 45(1) of the Constitution. Those actions intervened in an unsolicited way into their religious affairs. The Speaker has also forced his religion on other persons, contrary to Section 45(3) of the Constitution.

86. I find that the Speaker, though with good intentions and supported by the House Committee that he chaired, acted unconstitutionally, in breach of Section 45 of the Constitution.

3. HAS THERE BEEN ANY BREACH OF THE NATIONAL CULTURAL PROPERTY (PRESERVATION) ACT?
   

87. The plaintiffs assert that the Speaker’s actions in removing the masks and the totem pole are unlawful acts under the National Cultural Property (Preservation) Act. They argue that the masks and totem pole are objects of “national cultural property”, that it was an offence to wilfully destroy, damage or deface them without reasonable excuse and that there was no reasonable excuse in this case.

88. The defendants respond that there was nothing culturally significant about those objects, that they have not been declared or proclaimed as “national cultural property” and that their damage and removal is authorised by law. There has been no breach of the Act.

The parties agree on two facts:

• there has been no gazettal of the masks or the totem pole as “national cultural property” under the Act;
  
• the objects have been damaged and defaced and removed from their original locations at Parliament House.
  

The issues are:

(a) Do the objects of cultural decoration fall within the definition of “national cultural property”?

(b) Did the objects have to be gazetted as declared or proclaimed, to be protected under the Act?

(c) Have the objects been wilfully destroyed, damaged or defaced?

(d) Was there a reasonable excuse for what was done?

89. Having considered the submissions of the parties, in light of my findings of fact and the facts agreed for the purposes of this part of the Court’s judgment, I have determined the issues as follows.

(a) Do the objects fall within the definition of “national cultural property”?

90. Yes. Section 1 of the Act states:

"national cultural property" means any property, movable or immovable, of particular importance to the cultural heritage of the country, and in particular (but without limiting the generality of the foregoing) includes—

(a) any object, natural or artificial, used for, or made or adapted for use for, any purpose connected with the traditional cultural life of any of the peoples of the country, past or present; and

(b) any mineral specimen or fossil or mammal remains of scientific or historic interest to the country; and

(c) any other collection, object or thing, or any collection, object or thing of a class, declared to be national cultural property under Section 4; and

(d) any collection of national cultural property;

91. I find, based on the evidence of each of the plaintiffs and having regard to the history of the creation of the masks and the totem pole and their curation and installation as significant works of culture and art in a building of the cultural and constitutional significance of Parliament House, that the objects of cultural decoration the subject of these proceedings are “national cultural property”.

92. They are property of particular importance to the cultural heritage of the country. In particular they are natural and artificial objects used for, made and adapted for purposes connected with the traditional cultural lives of many of the peoples of the country, past and present. They therefore fall within both the general and a particular definition of “national cultural property”.

(b) Did the objects have to be gazetted as declared or proclaimed, to be protected under the Act?

93. No. With respect, the Speaker’s interpretation of the Act is flawed. The provision on which the plaintiffs rely to establish the unlawfulness of the Speaker’s actions is Section 9 (destroying national cultural property), which states:

(1) A person who, without lawful and reasonable excuse (proof of which is on him) wilfully destroys, damages or defaces any national cultural property, is guilty of an offence.

Penalty: A fine not exceeding K200.00.

(2) A person who, by force, threats, fraud, misrepresentation, undue influence or in any other manner, obtains the destruction, damaging, defacing, confiscation or yielding up of any national cultural property is guilty of an offence.

Penalty: A fine not exceeding K500.00 or imprisonment for a term not exceeding six months.

94. The elements of the offence created by Section 9(1) are that a person has:

• wilfully destroyed, damaged or defaced;
• any national cultural property;
• without lawful and reasonable excuse.
  

95. The Act makes provision in Sections 4 and 5 for objects to be declared and/or proclaimed as “national cultural property”:

Section 4 (declaration of national cultural property) states:

The Head of State, acting on advice given after receiving a report from the Council, may, by notice in the National Gazette, declare—

(a) any collection, object or thing; or

(b) any collection, object or thing of a specified class,

to be national cultural property.

Section 5 (proclaimed cultural property) states:

The Head of State, acting on advice given after receiving a report from the Council, may, by notice in the National Gazette, declare any national cultural property to be proclaimed cultural property for the purposes of this Act.

96. However, the significance of a declaration under Section 4 is simply to put the issue of whether any collection, object or thing is “national cultural property” beyond doubt. It does not make a gazetted declaration a prerequisite to an object being so regarded.

97. The significance of a proclamation under Section 5 is to bring the provisions of Part IV (proclaimed cultural property), comprising Sections 12, 13 and 14, into play. These provisions state:

12. Registration.

The Council shall, as far as practicable, maintain, in such manner and form as they determine, a register of all proclaimed cultural property, whether within or outside the country.

13. Notification of whereabouts, etc.

Where any national cultural property is declared to be proclaimed cultural property under Section 5, the owner and the person in whose custody or control the property is at the date of the declaration, and any other person into whose possession or control the property subsequently comes, must—

(a) immediately notify the Council in the prescribed form, giving the prescribed particulars of the nature, situation and condition of the property; and

(c) immediately notify the Council from time to time of any change in the situation or condition of the property; and

(d) in the case of a collection that is proclaimed cultural property—give to the Council at least one month's written notice before breaking up the collection or disposing of any part of it; and

(e) make the property available at all reasonable times for examination by the Council or a person authorized by them for the purpose.

Penalty: A fine not exceeding K400.00.

Default penalty: A fine not exceeding K20.00.

14. Repair, etc.

The Council may, out of moneys lawfully available, repair, renovate or preserve, or contribute to the repair, renovation or preservation of, any proclaimed cultural property.

98. I reiterate that the fact that the objects of cultural decoration the subject of these proceedings have not been declared or proclaimed as “national cultural property” does not detract from the finding that, as a matter of fact and law, the objects are “national cultural property”. They are protected under the Act.

(c) Have the objects been wilfully destroyed, damaged or defaced?

99. It is an agreed fact that the masks and the totem pole have been, at least, damaged and defaced. I find that this has been done deliberately and intentionally and therefore wilfully.

(d) Was there a reasonable excuse for what was done?

100. The Act does not make it clear what would constitute a reasonable excuse. I suggest that if a person brings his or her intention to destroy, damage or deface an object of “national cultural property” to the attention of a proper authority, such as the National Cultural Council (established under the Cultural Development Act 1986, referred to in Section 2 of the National Cultural Property (Preservation) Act) or the Board of Trustees of the National Museum and Art Gallery, and such an authority were to notify that it had no objection to the proposed course of action, that would constitute a lawful and reasonable excuse. Or if the person could show that some other law authorised his or her actions, that would be a lawful and reasonable excuse.

101. In the present case, none of those scenarios applied. And just as in the earlier determination, it was found that the Speaker could not rely on his constitutional powers to justify a breach of human rights, I find that, likewise, he cannot rely on those powers to justify a breach of the National Cultural Property (Preservation) Act. I find that the Speaker acted without lawful justification or excuse.

Conclusion as to issue (3): whether the National Cultural Property (Preservation) Act was breached

102. I refrain from finding that the Speaker has committed an offence under Section 9, as he has not been charged with an offence. It would be unfair to make such a finding and to expose him to the prospect of a criminal penalty without following standard criminal procedures.

103. However, I find that the Speaker, by ordering the removal of the objects of cultural decoration the subject of these proceedings (which could only be effected by damaging and defacing them), wilfully damaged and defaced those objects, without lawful justification or excuse. His actions were in breach of the National Cultural Property (Preservation) Act.

4. HAS THERE BEEN ANY BREACH OF THE COPYRIGHT AND NEIGHBOURING RIGHTS ACT?
   

104. My determination of this issue will be brief as there was little argument on the issue from either side. However, it is a significant issue, and it was addressed in Dr Moutu’s affidavit, and the defendants had ample opportunity to respond to the points raised by Dr Moutu.

105. Dr Moutu’s argument is this. The objects of cultural decoration the subject of these proceedings were protected works under the Copyright and Neighbouring Rights Act 2000. Copyright in those works vested in their “authors” (the persons who created them), which gave them economic and moral rights, including the exclusive right to authorise “transformation” of the works and the right to object to any “mutilation” of their works. None of those rights were afforded to the authors. Therefore the transformation and mutilation that occurred breached the Act.

106. I uphold Dr Moutu’s argument. I find that the masks and the totem pole were “protected works”, as they fell within the definition of “protected works under Section 4 (works protected) of the Copyright and Neighbouring Rights Act, which states:

(1) Subject to this Act, the following works are protected works and are eligible for copyright under this Act:—

(a) literary and artistic works of original intellectual creations in the literary and artistic domain, including in particular—

(i) books, pamphlets, articles, computer programs and other writings; and

(ii) speeches, lectures, addresses, sermons and other oral works; and

(iii) dramatic,dramatic-musical works, pantomimes, choreographic works and other works created for stage productions; and

(iv) musical works, with or without accompanying ҈&<;< < words; a><(v) aud) audio-visual works; and

(vi) works of architecture; and

(vii) wof dra pain scul, engg, liaphy, tap, tapestryestry and and other works of fine art; and

(vii>(viii) photographic works; and

(ix) works of applied art; and

(x) illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science; and

(b) derivative works, including in particular—

(i) translations, adaptations, arrangements and other transformations or modifications of works; and

(ii) collections of works and databases, whether in machine, readable or other forms; and

(iii) collections of expressions of folklore provided that such collections are original by reason of the selection or arrangement of their contents.

(2) Works eligible for copyright under this section are protected by the sole fact of their creation irrespective of the mode or form of expression, content, quality or purpose.

(3) The protection of any work referred to in this section shall be without prejudice to any protection of a pre-existing work or expression of folklore incorporated in or utilized for the making of such a work.

107. I find that the masks and the totem pole are artistic works of original intellectual creation in the artistic domain (s 4(1) (a)). In particular, they are works of sculpture and other works of fine art (s 4(1) (a) (vii)). They are protected works.

108. The team of artists and craftsmen who created, curated and installed the masks and the totem pole are the authors of those works, according to the definition of “author” in Section 2, which states:

"author", in relation to a work, means the person who has created the work.

109. Copyright in those works vested in their “authors” which gave them economic and moral rights, including:

• the exclusive right to authorise “transformation” of the works (s 6(1)(c)); and
  
• the right to object to any “mutilation” of their works that would be prejudicial to their honour or reputation (s 7(1)(d)).
  

110. Section 6(1)(c) (economic rights) states:

Subject to this Act, the author or other owner of copyright shall have the exclusive right to carry out or to authorize the following acts in relation to the work: ... the adaptation, arrangement or other transformation of the work.

111. Section 7(1)(d) (moral rights) states:

The author of a copyright work shall have the right ... to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, his work which would be prejudicial to his honour or reputation.

112. Because it appears that a number of the craftsmen who created the masks and the totem pole are deceased, it is important to identify another key provision of the Act. Section 17 (duration of copyright) states:

(1) Subject to this section, the economic and moral rights in respect of a copyright work shall be protected during the life of the author and for a period of 50 years from the date of his death.

(2) In the case of a work of joint authorship, the economic and moral rights of the author shall be protected during the life of the author and for a period of 50 years from the date of his death.

(3) In the case of a collective work, other than a work of applied art, and in the case of an audio-visual work, the economic and moral rights shall be protected for a period of 50 years from the date on which the work was made, first made available to the public or first published, whichever occurs last.

(4) In the case of a work published anonymously or under a pseudonym, the economic and moral rights shall be protected for a period of 50 years from the date on which the work was made, first made available to the public or first published, whichever occurs last, provided that where the author's identity is revealed or is no longer in doubt before the expiration of the said period, the provisions of Subsection (1) or Subsection (2), as the case may be, shall apply.

(5) In the case of a work of applied art, the economic and moral rights shall be protected for a period of 25 years from the making of the work.

I find that none of the rights of the authors of the protected works to be consulted on the transformation or mutilation of their works were afforded to them or their descendants. Therefore the transformation and mutilation that occurred was unlawful.

Conclusion as to issue (4): whether the Copyright and Neighbouring Rights Act was breached

113. The objects of cultural decoration the subject of these proceedings were protected works (being artistic works of original intellectual creation in the artistic domain) under the Copyright and Neighbouring Rights Act. Copyright in those works vested in their “authors” (the persons who created them), which gave them economic and moral rights, including the exclusive right to authorise “transformation” of the works (s 6(1) (c)) and the right to object to any “mutilation” of their works (s 7(1) (d)). None of those rights were afforded to the creators of the objects or to their descendants. The transformation and mutilation that occurred was in breach of the Act.

5. WHAT DECLARATIONS OR ORDERS SHOULD THE COURT MAKE?
   

114. I am satisfied that the plaintiffs have established that the damage, dismantling and removal of the objects of cultural decoration the subject of these proceedings was:

• a violation of the right to freedom of conscience, thought and religion, including the traditional religious beliefs and customs of the peoples of Papua New Guinea, guaranteed by Section 45 of the Constitution;
  
• prohibited by the National Cultural Property (Preservation) Act Chapter No 156;
  
• in breach of the Copyright and Neighbouring Rights Act 2000.
  

115. I will make the appropriate declarations, accordingly. As to what consequential orders, if any, should be made, there are several considerations to bear in mind, and they all centre on the concept of justice:

• this is a Court of justice;
  
• in interpreting the laws of Papua New Guinea the Court is obliged by Section 159 of the Constitution to give paramount consideration to the dispensation of justice;
  
• this Court has an inherent power under Section 155(4) of the Constitution to make orders that are necessary to do justice;
  
• Section 57 of the Constitution obliges the Court to protect and enforce human rights – and human rights and the concept of justice are at the centre of this case – and to act on its own initiative, if necessary.
  

116. Because the Court is so heavily bound to protect human rights and make orders in the interests of justice, it follows that the Court is also bound to correct injustice, whenever it is detected. I detect an injustice. I consider that the Speaker has fundamentally misunderstood the proper place of Christianity in the constitutional fabric of Papua New Guinea. He has elevated Christianity to a position it does not deserve. He has imposed his own personal view of Christianity on the Parliament and its members and the People of Papua New Guinea. He appears to have taken the view that if any of Papua New Guinea’s indigenous cultures is in conflict with his notion of Christianity, it should be quashed.

117. With respect, this is not permitted by the Constitution, which does not provide for dominance of any one religion over others. The Constitution encourages and fosters a union of cultures and beliefs and religions, but not a fusion. Just as the Chalcedonian Definition of Jesus Christ rationalised, in the person of Jesus Christ, on the one hand, His divinity, and on the other hand, His humanity, so as to recognise a ‘union without fusion’ and a ‘distinction without separation’, so has the Constitution done. It implores the peoples of Papua New Guinea to rejoice in both their differences and the commonality of their humanity.

118. I consider that it is in the interests of justice that the injustice that has occurred, be remedied by an order that the objects of cultural decoration the subject of these proceedings be restored.

ORDER

119. The Court, pursuant to Sections 57(3) and 155(4) of the Constitution:

(1) Declares that the damage, dismantling and removal of the objects of cultural decoration at Parliament House, the subject of these proceedings – the 19 masks on the lintel at the main entrance and the totem pole in the Grand Hall – infringed Section 45 of the Constitution, and were unlawful acts.

(2) Declares that the objects of cultural decoration at Parliament House, the subject of these proceedings, were “national cultural property” for the purposes of the National Cultural Property (Preservation) Act Chapter No 156 and that the damage, dismantling and removal of those objects breached Section 9 of the National Cultural Property (Preservation) Act and were unlawful acts.

(3) Declares that the objects of cultural decoration at Parliament House, the subject of these proceedings, were protected works under the Copyright and Neighbouring Rights Act 2000 and that copyright in those works vested in their “authors”, which gave them or their descendants economic and moral rights, including the exclusive right to authorise “transformation” of the works and the right to object to “mutilation” of their works; which rights had not been afforded to them or their descendants; and that accordingly the transformation and mutilation of those works was unlawful.

(4) Orders that the first, second and third defendants and all other persons are restrained forthwith from further damaging, dismantling and removing the objects of cultural decoration at Parliament House, the subject of these proceedings, or similar objects of cultural decoration at Parliament House.

(5) Orders that the first and second defendants shall, within six months after the date of judgment, at the cost of the National Parliament, and in consultation with the persons who created, curated and installed the objects of cultural decoration at Parliament House, the subject of these proceedings (or their descendants) and in consultation with the plaintiffs, repair, return or replace the objects of cultural decoration at Parliament House, the subject of these proceedings.

(6) Orders that the first, second and third defendants and all other persons are permanently restrained from further damaging, dismantling and removing the objects of cultural decoration at Parliament House, the subject of these proceedings, or such objects as are created, curated and installed to replace those objects or similar objects of cultural decoration at Parliament House, unless the question of destruction, damage or removal of such cultural objects is decided by the Parliament, at a meeting of the Parliament, in accordance with Section 114 of the Constitution, having regard to and respect for the rights and freedoms conferred by Section 45 of the Constitution and the restrictions imposed under the National Cultural Property (Preservation) Act and the Copyright and Neighbouring Rights Act 2000.

(7) Orders that the first and second defendants shall pay the plaintiffs’ costs of the proceedings on a party-party basis, which shall, if not agreed, be taxed, and that other parties bear their own cost

___________________________________________________________
Koeget Lawyers: Lawyers for the plaintiffs
Solicitor-General: Lawyer for the 1^st, 2^nd& 4^th defendants
Elemi Lawyers: Lawyers for the 3^rd defendant