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Application by Hon. Belden Namah [2020] PGSC 148; SC2057 (2 November 2020)

SC2057

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCC(OS) 4 OF 2020

Application pursuant to Constitution Section 18(1)

Application by the Honourable
Belden Norman Namah, MP

Waigani: Hartshorn J
2020: 23^rd October, 2^nd November

CONSTITUTIONAL REFERENCE – practice and procedure - application to Intervene by the Speaker of Parliament

Cases Cited

Reference by Igo Namona Oala (2011) SC1128
In re Re-Election of the Governor General, Special Reference by Morobe Provincial Executive (2012) SC1202
Application by Don Pomb Polye v. Theodore Zurenuoc and Ors (2016) unreported, unnumbered, delivered 6^th July 2016
Special Reference by Hon. Davis Steven (2019) SC1790
Reference by Hon. Belden Namah (2019) SC1896 and SC1898
Special Reference by Hon. Davis Steven (2019) SC1828
Application by Belden Namah (2020) SC2014

Counsel:

Mr. G. Sheppard and Mr. P. Tabuchi, for the Applicant
Mr. C. Mende, for the Speaker of Parliament

2^nd November, 2020

1. HARTSHORN J: This is a decision on an application to intervene in this proceeding by the Speaker of Parliament, the Hon. Job Pomat (Speaker) (intervention application).

2. The substantive Application is applied for pursuant to s. 18(1) Constitution by Hon. Belden Namah (Applicant). The Applicant does not oppose the intervention application and did not make any submissions on the application.

Application

3. The Applicant requests that the Supreme Court declare that the National Pandemic Act (No. 8 of 2020), is unconstitutional, invalid and ineffective on numerous grounds.

Intervention application

4. The Speaker contends that his intervention application should be granted as he has an interest in this proceeding the extent of which is as follows:

“(i) Under s. 110(1) Constitution, the Speaker is obliged to certify under the National Seal, in accordance with the Standing Orders of the Parliament, that a law has been made by Parliament. The law comes into operation on the date of the certificate or on another date specified in accordance with law;

(ii) Standing Order no. 221of the Parliament states that “every act made by the Parliament shall be presented to Mr. Speaker for certification under the National Seal, having been first certified by the signature of the Clerk as having been passed by the Parliament”;

(iii) The Pandemic Act 2020 was recently certified by the Speaker and came into operation on 16 June 2020;

(iv) The Pandemic Act is now brought under scrutiny and therefore the Speaker needs to explain why he certified the Law as a law properly made by the Parliament.”

Consideration

5. The Speaker makes his intervention application pursuant to Order 4 Rule 21 Supreme Court Rules.

6. Decisions concerning Applications made pursuant to s. 18(1) Constitution, such as this Application, in which applications to intervene have been made include: Reference by Igo Namona Oala (2011) SC1128, a decision of Davani J; Application by Don Pomb Polye v. Theodore Zurenuoc and Ors (2016) unreported, unnumbered, delivered 6^th July 2016 (Injia CJ, Salika DCJ (as they then were) and Makail J) and my decisions in Reference by Hon. Belden Namah (2019) SC1896 and SC1898. (Previous proceedings made pursuant s.18(1) Constitution which were titled References are now referred to as Applcations)

7. In the decision of Davani J. in Oala (supra), after a detailed consideration, including of several Australian High Court cases, Her Honour held amongst others, that the discretion to grant leave to intervene is a very wide one and that an applicant must have a substantial interest in the issues to be decided in the case. This interest can be a direct interest or in effect, an interest in another proceeding that an applicant has which may be affected by the Application decision.

8. More recently in the decision in Polye’s case (supra) in delivering the reasons of the Court for refusing applications to intervene, Injia CJ (as he then was) said:

“..... we do not believe..... those other persons have any real interest in terms of that substantive issue.” and;

“..... we do not consider that the applicants intervening in this case have any real interest in the substantive issue that is before the court for determination, and the applications should be dismissed for that main reason.”

9. The court held in Polye’s case, brought by a former Leader of the Opposition, which concerned amongst others, motions of no confidence, that the Prime Minister and the Leader of Government Business did not have any real interest in the subject matter of the Application.

10. As mentioned, both Oala’s case and Polye’s case concerned Applications filed under s. 18(1) Constitution.

11. I also make reference to In re Re-Election of the Governor General, Special Reference by Morobe Provincial Executive (2012) SC1202, a s. 19(1) Special Reference case in which, at [17] the five member Court said:

“We agree with the reservations expressed by Davani J in Reference Pursuant to Section 18(1) of the Constitution by Igo Namona Oala & Oala Moi (2011) SC1128 about the Court perhaps being overly liberal in the past in permitting interveners to join constitutional references. Her Honour doubted the utility of allowing persons to intervene when all that they would be doing would be repeating submissions of the principal party.”

12. Then in Special Reference by Hon. Davis Steven (2019) SC1828 (Hartshorn J, Makail J, Dingake J), the Court stated at [14]:

“From a consideration of the above cases, to our minds for the purposes of an intervention application, a substantial interest and real interest is a right or liability recognised in law, peculiar to an applicant, which is directly or is likely to be directly affected by the issues in the Reference.”

(See also Special Reference by Hon. Davis Steven (2019) SC1790 at [12].)

13. In my decisions in Reference by Hon. Belden Namah (2019) SC1896 and SC1898 at [12], I adopted the test referred to in Steven (supra). I also adopted this test in the recent unsuccessful application by the Catholic Professionals Society of PNG Inc. to intervene in this proceeding: Application by Belden Namah (2020) SC2014. I am satisfied that this is the test to be applied in this instance.

14. The Speaker deposes, amongst others, that he needs, “... to explain to the Court on the issue of whether or not the Act was indeed properly passed by the Parliament.” He further deposes that he has an interest in the proceeding and therefore believes that his intervention will assist the Court to resolve the issues now brought before this Court.

15. In the substantive Application, the Applicant requests the court to declare the National Pandemic Act unconstitutional, invalid and ineffective because it offends against and is inconsistent with certain sections of the Constitution, it removes certain legislative powers from the Parliament and places it with the National Executive, it removes certain Parliamentary supervision, imposes harsh and oppressive penalties and is inconsistent with and affects certain constitutional freedoms.

16. The Applicant does not state as a reason for the National Pandemic Act to be declared unconstitutional, invalid and ineffective, that the Act was not properly passed by Parliament or as a result of an action or inaction of the Speaker. This was conceded by counsel for the Speaker.

17. Further, the Applicant states in the Application that the persons or bodies whose interests may be directly affected by the interpretation sought by the Applicant are the Attorney General of Papua New Guinea and the State. The Applicant has not named the Speaker of Parliament as such a person.

18. In this instance, to my mind, the Speaker has not satisfied this court that he has a right or liability recognised in law which is peculiar to the Speaker, which is directly or is likely to be affected by the issues in this Application.

19. Consequently, for the above reasons, this application of the Speaker should be dismissed.

Orders

20. It is ordered that:

1. The application of the Speaker of Parliament, Hon. Job Pomat for leave to intervene filed 30^th September 2020 is dismissed;
   

b) No order as to costs.
__________________________________________________________________
Young & Williams: Lawyers for the Applicant
Office of the Solicitor General: Lawyers for the First Intervener
Wantok Legal Group: Lawyers for the Speaker of Parliament