Application pursuant to Constitution Section 18(1) [2020] PGSC 107; SC2014 (17 September 2020)

SC2014

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: 11^th & 17^th September

SUPREME COURT – practice and procedure- Application to Intervene by the Catholic Professionals Society of PNG Inc - applicant requests that the Supreme Court declare that the National Pandemic Act (No. 8 of 2020) is unconstitutional, invalid and ineffective on numerous grounds – whether applicant has substantial interest which is likely to be affected by the decision in the reference - Society has no right or liability recognised in law which is peculiar to the Society, which is directly or is likely to be affected by the issues in this Application – application to intervene dismissed

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

Counsel:

Mr. G. Sheppard and Mr. G. Purvey, for the Applicant
Mr. T. Tanuvasa, for the First Intervener
Mr. A. Jerewai, for the Catholic Professionals Society of PNG Inc.

17^th September, 2020

1. HARTSHORN J: This is a decision on an application to intervene in this proceeding by the Catholic Professionals Society of PNG Inc. (Society) (intervention application).

2. The substantive Application is applied for pursuant to s. 18(1) Constitution by Hon. Belden Namah (applicant). The applicant supports the intervention application. The first intervener in this Application, Attorney General and Principal Legal Adviser, Hon Davis Steven, opposes the intervention 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 Society contends that its intervention application should be granted as:

a) its constitution allows it to participate in societal concerns;

b) it seeks to ensure the supremacy of the Constitution and the rule of law, and it seeks to promote and preserve Christian morals in society, particularly in the public sector with reference to good governance, transparency and accountability;

c) it is concerned that the National Pandemic Act breaches constitutional rights and freedoms, usurps the lawmaking powers of Parliament and increases executive power by removing the supervision and control of the Act by the Parliament.

5. The first intervener contends that the intervention application should be refused as:

1. the evidence and submissions on behalf of the Society only disclose an interest, as distinct from a substantial or real interest which is the test to be satisfied as adopted in Special Reference by Hon. Davis Steven (2019) SC1790;
   
2. the evidence on behalf of the Society concerns what the Society is about and does not describe how it has a substantial or real interest in this instance;
   

c) the Society has only been incorporated for about five years;

4. if the Society is permitted to intervene it would be repeating submissions to be made by the applicant;
   
5. any concerns which the Society may have may be raised with the applicant or its counsel but it is not necessary for the Society to intervene in the proceeding for this purpose.
   

Consideration

6. The Society makes its intervention application pursuant to Order 4 Rules 21, 22 and 23 Supreme Court Rules. No issue was taken with the jurisdiction relied upon.

7. 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 Applications).

8. 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.

9. 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.”

10. 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.

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

12. 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.”

13. 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].)

14. 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 am satisfied that this is the test to be applied in this instance.

15. The evidence adduced on behalf of the Society is by Mr. Paul Harricknan, its President. Mr. Harricknan deposes that amongst others: the Society was incorporated in December 2015; that he and other representatives of the Society had a meeting with the Controller under the National Pandemic Act and the Minister for Health and expressed their concerns about the Act; that the Society wrote to the Minister expressing its concerns; that the Society has certain objectives, purposes and interests and that the Society and its members have formed views concerning the Act. Further, the Society opposed the passing of the Act and issued a statement to that effect which appeared in the media.

16. In this instance, to my mind, the Society has not satisfied this court that it has a right or liability recognised in law which is peculiar to the Society, which is directly or is likely to be affected by the issues in this Application. In this regard, I concur with the submissions made on behalf of the first intervener. It is a Society that has an interest in the subject matter of this Application, similar, I venture to suggest, to the majority of citizens and other like-minded entities in Papua New Guinea, but it has not shown that it has a substantial and real interest to which reference has earlier been made.

17. Consequently, for the above reasons, this application of the Society should be dismissed.

Orders

18. The Court orders that:

1. The application of the Catholic Professionals Society of PNG Inc. for leave to intervene filed 14^th August 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
Jerewai Lawyers: Lawyers for the Catholic Professionals Society of PNG Inc.