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Special Reference Pursuant to Constitution Section 19; Reference by Acting Attorney-General [1995] PNGLR 530 (2 August 1994)

PNG Law Reports 1995

[1995] PNGLR 530 - Special Reference Pursuant to Constitution Section 19; Reference by Acting Attorney-General and Principal Legal Adviser to the National Executive Council 

[1995] PNGLR 530

U10

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SPECIAL REFERENCE PURSUANT TO CONSTITUTION

SECTION 19

REFERENCE BY ACTING ATTORNEY-GENERAL AND PRINCIPAL LEGAL ADVISER TO THE NATIONAL EXECUTIVE COUNCIL

Waigani

Salika J

2 August 1994

LEGAL PRACTITIONERS - Right of practice of member of Parliament holding only a restricted practising certificate - Right of practice of Shadow Attorney-General - Lawyers Act 1986 ss 37 and 39.

CONSTITUTIONAL LAW - Parliament - Leadership Code - Potential conflict of interest - Member serving as lawyer for Leader of the Opposition - Organic Law on the Duties and Responsibilities of Leadership s 9.

Facts

The Shadow Attorney-General sought to appear on behalf of the Leader of the Opposition in a Special Reference before the Supreme Court while holding only a restricted practising certificate. Objection was taken to his appearance, on the ground that he was purporting to practice on his own account without holding an unrestricted practising certificate entitling him to do so.

Held

1.       The Shadow Attorney - General held himself out to be lawyer for the Leader of the Opposition in his notice of appearance to the Court. He was, therefore, a lawyer practising on his own account for the purposes of the Lawyers Act 1986.

2.       The Shadow Attorney-General does not enjoy the same practice rights as the Attorney-General under the Attorney-General Act 1989.

3.       Although Members of Parliament are paid by the State, they are not employees of the State in the proper sense of the word.

4.       Where the liberty of the subject is at stake, the Court may allow a lawyer who has no practising certificate to appear for a convicted person on a criminal appeal after all other means of securing legal representation have been exhausted, but not otherwise.

Counsel:

R Pato, for the Acting Attorney-General.

B Narokobi, for Leader of the Opposition.

2 August 1994

SALIKA J.: This matter arises out of this special SCR No 2 of 1994; Haiveta v Wingti.

The special reference has been filed by the Acting Attorney-General. The Prime Minister and the Leader of the Opposition have filed notice to intervene. Mr Bernard Narokobi filed an appearance on the reference on behalf of the Leader of the Opposition.

Mr Pato objects to the appearance by Mr Narokobi for the Leader of the Opposition in the proceedings. His objection is based on the Lawyers Act 1986 (No 66 of 1986) ss 30, 35, 37, and 39.

Mr Narokobi, in his reply, filed an affidavit which states that he is a member of Parliament for the Wewak Open Electorate and that he is a qualified lawyer with a restricted practising certificate. Mr Narokobi obtained the restricted practising certificate after seeking counsel from the Ombudsman Commission. The Ombudsman Commission directed him to obtain a restricted practising certificate. It advised that he would be in breach of s 9 of the Organic Law on the Duties and Responsibilities of Leadership if he were to obtain all unrestricted practising certificate, but such a breach could be avoided if the Ombudsman Commission is informed that he will not be charging any fees or holding monies in trust.

The terms and conditions of a restricted practising certificate are that the holder is not to practice on his own account, that he is not to practice in partnership with another lawyer, and that he must not hold any trust monies for any other person (see s 37 and s 39(4) Lawyers Act). A lawyer who practices contrary to those conditions is guilty of an offence: s 37(2). The holder of an unrestricted practising certificate is entitled to practise as a lawyer in my manner allowed under the Lawyers Act: s 39(3).

Mr Pato’s objection is primarily based on the fact that Mr Narokobi is not a holder of an unrestricted practising certificate and that, as such, he cannot practice as a lawyer on his own account or in partnership with another lawyer or hold monies in trust for another person. It is not disputed that Mr Narokobi is a lawyer and that he is not in practice on his own account. However, Mr Narokobi, in his notice of appearance, holds himself as:

“Bernard Mulu Narokobi

Lawyer of Leader of the Opposition, Christopher Haiveta.”

That, in my view, indicates that Mr Narokobi is a lawyer practising on his own account. This is not permitted by s 37 of the Lawyers Act, because he is holder of a restricted practising certificate only. Mr Narokobi’s notice is well intentioned, and I do understand his position. His position and the argument he advances are that:

1.       he is not practicing on his own account;

2.       he is not practising in partnership with another lawyer; and

3.       he does not hold monies in trust for other persons who are his clients.

He says he is the lawyer for the Opposition who is a member of the Legislature. Unfortunately, the law does not offer the Shadow Attorney-General the same privileges as that of the Attorney-General.

Mr Narokobi has also made a submission that, as Shadow Attorney-General, he is the official spokesman and the lawyer for the Opposition, which is an arm of the legislature. He argues that the Attorney-General is a member of the National Executive Council and is also the Principal Legal Adviser and lawyer for the government. He further argues that the Attorney-General, as the head of all government lawyers, has a right of practise and audience in the court; therefore, the Shadow Attorney-General, as the lawyer for the Opposition and the alternative government, should also have the same right of practice and audience in court. While there may be some merits in the submission, the law does not provide the same privileges as that of the Attorney-General for the Shadow Attorney-General.

Mr Narokobi also argues that he considers himself an employee of the State, because he has no other employment of gain except his employment with the State as a member of Parliament and as Shadow Attorney-General. Whilst it is true that members of Parliament are paid by the State, I do not think it can be said that they are employees of the State, in the proper sense of the word. I would discount that argument.

The final submission by Mr Narokobi is that, on a prior Supreme Court appeal, the Supreme Court allowed Mr Gabriel Ramoi to argue an appellant’s case for him. The circumstances in which Mr Ramoi was allowed to have an audience in the Supreme Court was that the appellant had lodged his own appeal. The Public Solicitor refused to give legal aid to the appellant. The Law Society, through its legal aid scheme, also refused to grant legal aid. The prisoner turned to a fellow prisoner, Mr Ramoi, who is a law graduate and a former member of Parliament, as the last resort, when all avenues to get a lawyer failed, to help him articulate his argument before the Court. The Court, having satisfied itself that all avenues to get a lawyer had been exhausted, allowed Mr Ramoi to put the appellant’s case before it.

The situation in this case is that the Leader of the Opposition had engaged a firm of lawyers to represent him at the National Court. This firm of lawyers withdrew its services after no payment was made. The Opposition Leader then sought help from another firm of lawyers. That firm also withdrew its services. The Leader of the Opposition once more found himself without a lawyer. It is only at this stage that Mr Narokobi was requested to offer his services to the Leader of the Opposition. As in the case of Mr Ramoi, who offered his services free of charge, Mr Narokobi has offered his services free of charge to the Leader of the Opposition. Mr Narokobi is a qualified lawyer, admitted to practise in the National and Supreme Courts of Papua New Guinea. He is familiar with the practise and procedures of the courts and, as such, is in a better position to articulate the Opposition Leader’s case before the Court. However, in the case of the Court allowing Mr Ramoi to speak on behalf of fellow prisoners, it was a decision the Court made, because the liberty of the appellants was at stake.

In this case, the Opposition Leader’s liberty is not at stake. Therefore, the consideration for allowing Mr Ramoi audience in the Supreme Court is not necessarily the same as in this instance.

In the ultimate, I would not allow Mr Narokobi to appear for the Leader of the Opposition at this stage. However, I wish to offer some practical ways this problem could be solved.

Firstly, I suggest that Mr Narokobi reapply to the PNG Law Society today for an unrestricted practising certificate for this matter only, and that the Ombudsman Commission be asked to approve of it on the basis that Mr Narokobi will not be charging any fees and that he will not be keeping any monies in trust.

Secondly, I suggest that Mr Narokobi appears with a lawyer who has an unrestricted practicing certificate and that the lawyer simply tells the Court that Mr Narokobi has carriage of the matter, and that other lawyer may leave.

Lawyer for the Acting Attorney-General: Pato Lawyers.

Lawyer for the Leader of the Opposition: B Narokobi.