N8550

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HR (WS)13 OF 2020

BETWEEN:
MATTHEW SALUNG RONNY trading as Boma Fishing Service
Plaintiff

AND:
JOE KUNDA BONOMANE
First Defendant

AND:
MADANG PROVINCIAL GOVERNMENT
Second Defendant

Madang: Narokobi J
2020: 8th September, 2nd October

HUMAN RIGHTS – Constitution, Section 57 (Enforcement of guaranteed rights and freedoms) – considerations to grant leave to a non-lawyer representative.
PRACTICE AND PROCEDURE – Human Rights Rules 2010 – Order 23, rule 6 – considerations to grant leave to a non-lawyer representative.
LAWYERS ACT 1986 – Section 60 – Offence for a person to hold themselves out as a lawyer.
CONSTITUITION – Section 22 – National Court’s power to supply procedures to enforce rights and freedoms under the Constitution.

The Plaintiff sought representation from Mr Stephen Asivo, the Executive Director of the Foundation for Underprivileged People to represent him. Mr Asivo’s representation was objected to on the basis amongst others that it is an offence for a person who is not admitted to practice as a lawyer to hold themselves out as a lawyer.

Held:
(1)	Section 18(1) of the Constitution confers exclusive jurisdiction on the Supreme Court as to any question relating to the interpretation or application of any Constitutional law. That section is expressed to be subject to the Constitution. As ss 57(1) and 22 fell within the jurisdiction of both the National Court and the Supreme Court, the National Court has jurisdiction to interpret and apply ss 57 and 22 of the Constitution. (The State v Peter Painke (No 2) [1977] PNGLR 141and Raz v Matane [1985] PNGLR 329, considered and applied).

(2)	Section 57(1) of the Constitution has the following components:

•	A right or freedom in the Constitution, is protected by or enforceable by either the Supreme Court or the National Court or any other court being conferred this power by an Act of Parliament (In re, Enforcement of Basic Rights under the Constitution of the Independent State of Papua New Guinea, Section 57(2020) N8221, considered);

•	The protection or enforcement is either at the court’s own initiative (In re, Enforcement of Basic Rights under the Constitution of the Independent State of Papua New Guinea, Section 57, considered);

•	Or by application by any person who has an interest in the protection and enforcement of human rights (Application by ICRAF Re Willingal [1997] PNGLR 119, considered); and

•	Or, in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority (Application by ICRAF Re Willingal, considered).

(3)	Section 57(1) of the Constitution sets four (4) entities that can commence human rights proceedings seeking protection or enforcement of human rights and freedoms. They are:

•	The courts – either the National Court or Supreme Court or any other Court set up for this purpose by law (In re, Enforcement of Basic Rights under the Constitution of the Independent State of Papua New Guinea, Section 57, considered);

•	The aggrieved person themselves (Karingu, Enforcement of Rights Pursuant Constitution S57 [1988-89] PNGLR 277, considered));

•	Any person who has an interest in the enforcement and protection of human rights (Application by ICRAF Re Willingal, considered); and

•	Where a person is unable to fully and freely exercise their rights, by a person acting on their behalf, whether that person so acting has an interest in the enforcement and protection of human rights or not (Application by ICRAF Re Willingal, considered).

•	There is a fundamental difference between a person having an interest in the protection and enforcement of human rights applying to be a party as opposed to a non-lawyer applying to represent a party. Where an aggrieved person seeks representation from a non-lawyer to act on his behalf, although desirable for that person to have an interest in the protection and enforcement of human rights, it is not necessary if it is in the opinion of the court that the aggrieved is unable to fully and freely exercise their rights.(Application by ICRAF Re Willingal, considered).

(4)	Section 57(1) of the Constitution also allows a non-lawyer to appear on behalf of a person claiming infringement of their rights and freedoms in two instances:

•	Where the representative has an interest in the enforcement and protection of human rights; and/or

•	Where the aggrieved person is unable to fully and freely exercise their rights, the representative may or may not have an interest in the enforcement and protection of human rights.

(5)	Order 23 rule 6 of the Human Rights Rules is consistent with Section 57(1) and (2) of the Constitution, and provides for the following persons to either commence proceedings or represent a person claiming the protection or enforcement of human rights:

•	a person whose human rights or freedoms are adversely affected;

•	a person acting on behalf of a person who is under a disability or is unable to fully and freely exercise their right to bring an application for enforcement of their human rights or freedoms;

•	a person or body, whether public or private, who has an interest in the protection and enforcement of human rights and freedoms;

•	a person representing an international body with responsibility for, or a principal function of which is, protecting human rights and freedoms under international laws and conventions such as the Universal Declaration of Human Rights and any other declarations, recommendations or decisions of the General Assembly of the United Nations concerning human rights and freedoms; and

•	any other person or body who has a sufficient interest in the protection and enforcement of human rights and freedoms, approved by the Court.

(6)	A person who holds themselves out as a lawyer in return for a fee would be considered in breach of Section 60 of the Lawyers Act1986, even in a matter relating to the enforcement and protection of human rights and freedoms.

(7)	There is a lack of machinery to implement Section 57(1) of the Constitution and Order 23 Rule 6 of the National Court Rules 2010 on the question of representation by a non-lawyer, and the court supplies the following procedures to determine leave for a non-lawyer representative:

1.	The first step is to ascertain if the representation is objected to. If it is objected to, it may be prudent to request the plaintiff to file an application by way of a notice of motion and supporting affidavit, invoking the National Court’s jurisdiction under Section 57(1) of the Constitution and Order 23, rule 6 of the Human Rights Rules 2010. The court will consider the application in light of the considerations enumerated in Order 23, rule 6, paragraph (b) to (e). If it is not possible for the plaintiff to file an application, then the court may enquire into the circumstances of the plaintiff on its own motion.

2.	If the application is not objected to, procedures outlined in steps two (2) to seven (7) should be followed by the court. In determining an application that is objected to, three (3) of the main considerations the court will take into account are listed in steps two (2) to four (4).

3.	If leave is granted the court will be required to explain to the plaintiff the implications of engaging a non-lawyer in step five (5). 

4.	The second step is for the court to establish whether it is a human rights matter. It may be that the originating process may have other causes of actions pleaded, and the court has to determine whether it is appropriate to allow the non-lawyer to appear as a representative.

5.	The third step is for the court to establish the interest of the representative. That is, does the representative have an interest in the protection and enforcement of human rights.

6.	The fourth step is for the court to find out why the person is not able to engage the services of a lawyer. 

7.	The fifth step is for the aggrieved person or persons to appear in court (if it is possible) for the court to explain to them the implications of not engaging the services of a lawyer before they make their decision as to who should represent them. The court’s explanation should cover the following:

•	Their representative may not be able to understand the complexity of the procedural and substantive law;
•	If they lose the case, they suffer the likelihood of having costs awarded against them;
•	That their representative is representing them without any insurance; and
•	That they are not required to pay any legal fees to their representative, for example by their representative issuing an invoice to them.      

(8)	Court adopts the following procedures to determine representation in this case.

(9)	The matters the court will consider in relation to the fourth step depends on the circumstances of the case, but may include persons in the following circumstances:

•	oppressive or abusive relationship(s);
•	incarcerated whether lawfully or not;
•	impecunious;
•	medically indisposed;
•	living with disability, be it physical, visual or mental or any other disability;
•	prevented by oppressive customary practices;
•	illiterate;
•	cannot speak and understand English well;
•	living in an area where legal services are difficult to access;
•	Public Solicitor’s office is unable to receive instructions due to limited capacity or perhaps conflict of interest; and
•	Minors. 

Cases Cited:
The following cases are cited in the judgment:
Application by ICRAF Re Willingal [1997] PNGLR 119
In re, Enforcement of Basic Rights under the Constitution of the Independent State of Papua New Guinea, Section 57 (2020) N8221
Karingu, Enforcement of Rights Pursuant Constitution S57 [1988-89] PNGLR 277
Papua New Guinea Law Society v Stegman (1997) N1571
The State v Peter Painke (No 2) [1977] PNGLR 141
Raz v Matane [1985] PNGLR 329
The State v Alan Woila (No 2) [1978] PNGLR 113

Statute cited:

Constitution
Human Rights Rules 2010
Lawyers Act 1986

Counsel:

Mr. I. Asivo, with leave, for the Plaintiff
Mr. T. Ilaisa, for the Defendants
Mr B Wak, for a Defendant in a related proceeding

						RULING

02nd October, 2020

1.	NAROKOBI J: I am placed in a difficult situation, to decide whether a registered human rights advocate can appear as representative of persons who claim their human rights and or freedoms have been violated. The application is vigorously opposed by the defendant’s lawyers. It has taken some time to finally have this matter heard, and it is now before me for consideration.

A	ISSUES

2.	My task is sixfold, and they are:-

•	Firstly, whether I should refer this matter to the Supreme Court pursuant to Section 18(2) of the Constitution as it involves interpretation and application of the Constitution?;

•	Secondly, whether a non-lawyer representative can appear pursuant to Section 57(1) of the Constitution and Order 23 Rule 6 of the Human Rights Rules 2010 on behalf of a person claiming breach of their rights?; and

•	Thirdly, if the answer to the second issue is “Yes,” is the representation by right or must leave be first granted?;

•	Fourthly, if leave is required, what are the prescribed procedures to obtain leave? and;

•	Fifthly, if there are no procedures, can the court determine such procedures pursuant to Section 22 of the Constitution? 

•	Sixthly, should leave be granted in this particular case to Mr Asivo to appear as a representative of the plaintiff taking into account the procedures determined in this case?

B	THE LAW

3.	I begin by setting out the law in relation to this matter, which are principally provisions in the Constitution, the Lawyers Act 1986 and the Human Rights Rules 2010.

1)	Relevant laws

4.	The starting point is Section 57 of the Constitution. It states:

“57. Enforcement of guaranteed rights and freedoms.

(1)	A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.

(2)	For the purposes of this section—
(a) the Law Officers of Papua New Guinea; and
(b) any other persons prescribed for the purpose by an Act of the Parliament; and
(c) 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,
have an interest in the protection and enforcement of the rights and freedoms referred to in this Division, but this subsection does not limit the persons or classes of persons who have such an interest.

(3)	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).

(4) Any court, tribunal or authority may, on its own initiative or at the request of a person referred to in Subsection (1), adjourn, or otherwise delay a decision in, any proceedings before it in order to allow a question concerning the effect or application of this Division to be determined in accordance with Subsection (1).

(5) Relief under this section is not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, but may, if the court thinks it proper to do so, be given in cases in which there is a reasonable probability of infringement, or in which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement.

(6) The jurisdiction and powers of the courts under this section are in addition to, and not in derogation of, their jurisdiction and powers under any other provision of this Constitution.”
5.	Order 23, rule 6 of the Human Rights Rules 2010 sets out further procedures to implement Section 57 of the Constitution:

“6	Standing to bring or appear in proceedings

Without derogating from Sections 57(1) and (2) of the Constitution, persons who may bring or commence or appear in a human rights proceeding include:

(a)	A person whose human rights or freedoms are adversely affected by any act or omission of:

(i)	The government or a governmental body or a person exercising public power or performing public functions; or
(ii)	A private person or a body corporate, including a company, and any of its officers or employees exercising private powers or performing private functions;

(b)	A person acting on behalf of a person who is under a disability or is unable to fully and freely exercise their right to bring an application for enforcement of their human rights or freedoms;

(c)	A person or body, whether public or private, who has an interest in the protection and enforcement of human rights and freedoms;

(d)	a person representing an international body with responsibility for, or a principal function of which is, protecting human rights and freedoms under international laws and conventions such as the Universal Declaration of Human Rights and any other declarations, recommendations or decisions of the General Assembly of the United Nations concerning human rights and freedoms;

(e) any other person or body who has a sufficient interest in the protection and enforcement of human rights and freedoms, approved by the Court.”

6.	The Lawyers Act is the next important piece of legislation. Section 60 is relevant to the issues here and it states as follows:
“60. Offences 
(1) It is an offence for a person who has not been admitted to practise as a lawyer–
(a) to practise, or purport to practise, as a lawyer; or
(b) to hold himself out or represent himself to be a lawyer; or
(c) to permit other persons to use his name as being admitted to practise as a lawyer.
Penalty: A fine not exceeding K1,000.00.
(2) The qualification for carrying out the work specified in Paragraphs (a) to (e) inclusive is admission to practise as a lawyer, and subject to Subsection (3), it is an offence for a person who has not been admitted to practise as a lawyer, in expectation of a fee, gain or other reward–
(a) to draw or prepare a will or other testamentary settlement; or
(b) to draw or prepare a conveyance or other deed or instrument in relation to real or personal property; or
(c) to issue, defend or carry on judicial proceedings or proceedings in the name of another person; or
(d) to draw or prepare an instrument creating or regulating rights between parties where stamp duty would be payable in respect of that instrument; or
(e) to draw or prepare a document or instrument relating to the incorporation or formation of a limited company.
Penalty: A fine not exceeding K1,000.00.
(3) It is not an offence against Subsection (2) where the person–
(a) drawing or preparing the will or other testamentary settlement; or
(b) drawing or preparing the conveyance or other deed or instrument in relation to real or personal property; or
(c) issuing, defending or carrying on judicial proceedings in the name of another person; or
(ca) drawing or preparing an instrument creating or regulating rights between parties; or
(cb) drawing or preparing a document or instrument relating to the incorporation of a limited company,
was, at the time of the alleged offence–
(d) a public officer, who draws or prepares documents or instruments in the course of his official duty; or
(e) an employee of a lawyer admitted to practise who, in his capacity as an employee, carries out general legal work in the ordinary course of his employment on behalf of his employer.
(4) It is an offence for a lawyer to share his costs or fees with a person other than–
(a) a lawyer who is the holder of an unrestricted practising certificate; or
(b) the survivors of a deceased former partner; or
(c) the immediate family of the lawyer or a company beneficially owned by the lawyer or his immediate family; or
(d) a person who carries on practise as a lawyer in another country and for whom the lawyer performs work as an agent; or
(e) a person admitted to practise law in another country, who would if resident in Papua New Guinea be qualified to be admitted as a lawyer and with whom the lawyer carries on practice in partnership; or
(f) a person practising law in another country approved by the Rules.
Penalty: A fine not exceeding K1,000.00.
(5) It is an offence for a lawyer, without the consent of the Society, knowingly to employ any person–
(a) whose name has been removed from the Roll; or
(b) who has been disqualified from practice as a lawyer; or
(c) whose right to practise as a lawyer has been suspended in another country.
Penalty: A fine not exceeding K1,000.00.
(6) It is an offence for a lawyer–
(a) to act knowingly in any legal proceedings or other matter requiring the services of a lawyer as the agent of a person who is not a lawyer; or
(b) to allow his name to be used by a person who is not a lawyer for the purpose of any legal proceedings or other matter requiring the services of a lawyer.
Penalty: A fine not exceeding K1,000.00.
(7) It is an offence for a lawyer to employ knowingly a person whose name has been published by the Committee as being a person who shall not be employed by a lawyer for a specified period.
Penalty: A fine not exceeding K1,000.00.
(8) The conviction of a lawyer for an offence under this section constitutes improper conduct by that lawyer for the purposes of this Act.
(9) An offence against Subsection (2) shall not affect the validity of the instrument or document the subject of the offence.”
7.	These are the provisions of the laws that I have to interpret and apply in this case. But before I do that, I summarise the party’s contention on the law now.

2)	Parties Contention on the Law

8.	Mr Asivo says that Section 57 of the Constitution and the Human Rights Rules grants him the right to appear on behalf of any person who claims their rights and or freedoms have been violated.

9.	He relies on Order 23, rule 6 (a) and (b) of the Human Rights Rules to support his representation.

10.	He appears to be submitting that to the extent that the Lawyers Act prevents him from appearing, then it is contrary to the Constitution. He submits that it is the people’s court and they should be allowed to come to court to have their grievances addressed, either by themselves, their lawyer or their representatives.

11.	Mr Ilaisa on the other hand, submits that there is no inconsistency, in that the protection of human rights can be done, and it is through lawyers who have met the requirements to practise under the Lawyers Act 1986. There was not much emphasis on the Human Rights Rules in his submissions.

12.	Mr Wak supports Mr Ilaisa’s submissions and draws the court’s attention to the need for lawyers to be insured in the event of professional negligence. He says that Mr Asivo is taking a big risk in doing what he does.

13.	I now apply the law, by addressing each of the six issues I have identified here.

C	ADDRESSING THE FIRST ISSUE

14.	I remind myself that unless the Constitution permits the National Court to interpret and apply the Constitution, then it is the sole jurisdiction of the Supreme Court to interpret and apply the Constitution (Constitution, Section 18(1)). In The State v Peter Painke (No 2) [1977] PNGLR 141, the court held:

“If a breach of s. 37(3) was proved, counsel for the accused sought an order pursuant to the Constitution, s. 57(1) and (3) or s. 22, enforcing the accused’s Constitutional right. Section 18(1) of the Constitution confers exclusive jurisdiction on the Supreme Court as to any question relating to the interpretation or application of any Constitutional law. But both counsel agreed that as that section is expressed to be subject to the Constitution, and as under ss. 57(1) and 22 it was envisaged that such a question fell within the jurisdiction of both the National Court and the Supreme Court, there was no requirement to refer to the Supreme Court any question relating to the application and interpretation of s. 37(3). I consider this view to be correct. It does not seem to me possible for the National Court to exercise its jurisdiction under s. 57(1) and (3) to make an order which is necessary for the protection of a Constitutional right or freedom unless that Court both interprets and applies the relevant Constitutional provision.”

15.	This position was endorsed by the Supreme Court in Raz v Matane [1985] PNGLR 329.

16.	In this particular case, the National Court and Supreme Court are empowered by Sections 57 and 22 of the Constitution with concurrent jurisdiction to interpret and apply the provisions in the Constitution on human rights and freedoms. I therefore conclude that Section 18(1) of the Constitution vests the National Court jurisdiction in this matter.  

17.	I therefore proceed to interpret and apply relevant parts of Section 57 of the Constitution.

D	ADDRESSING THE SECOND ISSUE

18.	In my view Section 57(1) of the Constitution has the following components:

•	A right or freedom in the Constitution, is protected by or enforceable by either the Supreme Court or the National Court or any other court being conferred this power by an Act of Parliament (Karingu, Enforcement of Rights Pursuant Constitution S57 [1988-89] PNGLR 277);

•	The protection or enforcement is either at the court’s own initiative (In re, Enforcement of Basic Rights under the Constitution of the Independent State of Papua New Guinea, Section 57 (2020) N8221);

•	Or by application by any person who has an interest in the protection and enforcement of human rights (Application by ICRAF Re Willingal [1997] PNGLR 119); and

•	Or, in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority (Application by ICRAF Re Willingal).

19.	It is clear from Section 57(1) of the Constitution that there are four (4) entities that can commence human rights proceedings seeking protection or enforcement of human rights and freedoms. They are:

•	The courts – either the National Court or Supreme Court or any other Court set up for this purpose by law (Karingu, Enforcement of Rights Pursuant Constitution S57);

•	The aggrieved person themselves (Karingu, Enforcement of Rights Pursuant Constitution S57);

•	Any person who has an interest in the enforcement and protection of human rights (see for example Application by ICRAF Re Willingal);

•	Where a person is unable to fully and freely exercise their rights, by a person acting on their behalf (see for example Application by ICRAF Re Willingal).

20.	Based on my analysis above, my view is that Section 57(1) of the Constitution also allows a non-lawyer to appear on behalf of a person in two instances:

•	Where the representative has an interest in the enforcement and protection of human rights;

•	Where the aggrieved person is “unable to fully and freely exercise their rights,” the representative may or may not have an interest in the enforcement and protection of human rights such as a close friend or family member.

21.	Section 57(2) of the Constitution prescribes persons who may have an interest in the enforcement and protection of human rights referred to in Section 57(1):

“(a) the Law Officers of Papua New Guinea; and
(b) any other persons prescribed for the purpose by an Act of the Parliament; and
(c) 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…”

22.	It is under instances provided in paragraph (c) which gives scope for a non-lawyer to be involved, so long as they have an interest (whether personal or not) in the maintenance of the principles commonly known as the Rule of Law.
23.	It is also my view that Order 23 rule 6 of the Human Rights Rules is consistent with Section 57(1) and (2) of the Constitution, and provides for the following persons to either commence proceedings (see for example Application by ICRAF Re Willingal) or represent a person claiming the protection or enforcement of human rights in the following circumstances:

•	To act on behalf of a person who is under a disability or is unable to fully and freely exercise their right to bring an application for enforcement of their human rights or freedoms;

•	Where the person or body, whether public or private, has an interest in the protection and enforcement of human rights and freedoms;

•	An international body with responsibility for, or a principal function of which is, protecting human rights and freedoms under international laws and conventions such as the Universal Declaration of Human Rights and any other declarations, recommendations or decisions of the General Assembly of the United Nations concerning human rights and freedoms;

•	any other person or body who has a sufficient interest in the protection and enforcement of human rights and freedoms, approved by the Court.

24.	It is clear that the Human Rights Rules is designed to implement Section 57(1) of the Constitution and to the extent allows non-lawyers to appear for aggrieved persons.

25.	This then raises the question of how the Lawyers Act fits into this narrative. I have considered the Lawyers Act in relation to whether there are provisions allowing a non-lawyer to perform what are traditionally considered as lawyers work for a fee. The Act provides a limited range of circumstances where it can be done. This is set out in Section 60(3)(d) and (e) of the Lawyers Act. I will now discuss this provision in detail below now based on the relevant decided cases.

26.	Section 60 of the Lawyers Act creates an offence for a person who is not admitted to practice law to hold themselves out as a lawyer. In the case of Papua New Guinea Law Society v Stegman (1997) N1571 the defendant was not admitted to practice law but was employed as a “legal officer.” The Papua New Guinea Law Society successfully prosecuted the defendant for holding himself out as a lawyer. The court made the following relevant observations:

“Upon admission to practice as a lawyer, a person may be either issued with an unrestricted or restricted practicing certificate: S. 39.  The holder of an unrestricted practicing certificate “entitles” that person “to practice as a lawyer in any manner allowed under the Act”.  S. 39 (3).  A restricted practicing certificate holder “entitles the holder to practice as a lawyer, but not - (a) on his own account: or (b) in partnership with another lawyer; or hold moneys in trust for another person who is a client”: S. 39 (4).  But the Act does not specifically define what “practicing as a lawyer” involves in terms of legal work.  I am also not aware of any prevailing promulgation or regulations or rules under the Act.”

27.	His Honour Injia J (as he then was) then went on to state:

“Section 60 (2) & (3) may provide some assistance on this point.  Section 60 (2) - (3) define specific offences relating to the conduct of non-lawyers who do specific things which only lawyers admitted to practice under the Act can do.…

It may be inferred from S. 60 (2) and (3) that the specific things set out in (2) (a), (b) and (c) are reserved for lawyers admitted to practice under the Act.  They are things which only lawyers admitted to practice under the Act can do and they’re entitled to charge a fee or receive a gain or reward for doing those things.  A person who is employed and paid by a company to do these things may be deemed to be a person who is engaged to do them “in expectation of a fee, gain or other reward.”  That gain or reward is in the form of his salary, a form of income received for performing legal work.  The only exceptions are if he is a “Public Officer” of the company or an employee of a lawyer admitted to practice under the Act: S. 60 (3) (d) (e).”

28.	In finding the defendant guilty his Honour held:

“It may be inferred from S. 60 (2) and (3) that the specific things set out in (2) (a), (b) and (c) are reserved for lawyers admitted to practice under the Act.  They are things which only lawyers admitted to practice under the Act can do and they’re entitled to charge a fee or receive a gain or reward for doing those things.  A person who is employed and paid by a company to do these things may be deemed to be a person who is engaged to do them “in expectation of a fee, gain or other reward.”  That gain or reward is in the form of his salary, a form of income received for performing legal work.  The only exceptions are if he is a “Public Officer” of the company or an employee of a lawyer admitted to practice under the Act: S. 60 (3) (d) (e).”

29.	In my view there are two components to this – the first is that of a person holding themselves out as a lawyer, and secondly, it is being done in expectation of a reward or fee. In my view, the two components go together. A person who holds themselves out as a lawyer in return for a fee would be considered in breach of the Lawyers Act. As to what constitutes “holding out as a lawyer,” should be determined on a case by case basis, taking into account the circumstances of a particular case. The underlying consideration is what Injia J (as he then was) refers in the following manner:

“Therefore, it seems to me that what is important under S. 60 (1) (b) is not what legal name a person calls himself per se but having given himself a legal name, what that person does.  It is really a question of what a person admitted to practice law under the Act is entitled to do or things which a person not admitted to practice under the Act is not entitled to do.”
30.	It would appear to me that this means that the circumstances are taken on a case by case basis to determine what carrying on as a lawyer may amount to. In Stegman, his Honour referred to the type of work outlined in Section 60(2)(a), (b) and (c) of the Lawyer Act as specifically reserved for a lawyer for which they can expect a fee or reward, that is:

“(a) to draw or prepare a will or other testamentary settlement; or

(b)  to draw or prepare a conveyance or other deed or instrument in relation to real or personal property; or

(c) to issue, defend or carry on a court action or proceedings in the name of another person.”

31.	I must now determine how the Lawyers Act is to be read in light of the provisions of the Constitution, section 57 and the Human Rights Rules, which I have referred to above.

32.	I agree with Mr Ilaisa that there is no issue arising with respect to the constitutionality of the Lawyers Act and the Constitution in this particular matter. However, I point out that the Constitution does allow non-lawyers acting on behalf of persons claiming infringement of their rights and freedoms for specific reasons which will be addressed below.

33.	I therefore reach the conclusion on the second issue that a non-lawyer can appear on behalf of a person who claims their rights have been breached. This is provided for in the Constitution and the Human Rights Rules. To read otherwise would be to go against the clear terms of the law. Such a position is also consistent with the nature of human rights. For example, the Universal Declaration of Human Rights decrees human rights as inalienable. The Preamble of the Constitution says that respect for the dignity of the individual is a basic principle of our society. Rights and freedoms are not aspirational statements but are directly enforceable by virtue of the Constitution.

34.	National Goal 1 of the Constitution calls for every Papua New Guinean to be involved in a process of freeing himself or herself from every form of domination or oppression. A claim for human rights is the legal mechanism available to make this a reality. This may take the form of an oppressive custom as was what the court found in Application by ICRAF Re Willingal. One also notes National Goal 2 calls for every citizen to take part in the political, economic, social, religious and cultural life of the country. This means that the courts should not be used as a tool to obstruct people who wish to participate in the country’s development.

35.	 These policy considerations explain why Section 57 of the Constitution is framed in the way it has been by allowing non-lawyers to appear on behalf of an aggrieved person.

E	ADDRESSING THE THIRD ISSUE

36.	Section 57(1) of the Constitution uses the words “on application by any person who has an interest…” and further the phrase, “…in the opinion of the court….” This suggests that such representation on behalf of the aggrieved must be done with leave of the court. This was the process undertaken in Application by ICRAF Re Willingal and in my view, correctly. That is the standing of the applicant had to be determined first, so leave must be sought before the court attends to the merits of the claim.

F	ADDRESSING THE FOURTH ISSUE

37.	Since it is clear that appearance is not as of right, what are the procedures before leave is granted? I have considered a number of cases on the issue, and I am not able to identify any cases that outlines the relevant procedures. I note that the Human Rights Rules replicates and to an extent amplifies the requirements of Section 57(1) and (2) the Constitution, but does not further outline the procedures to invoke the court’s jurisdiction to grant leave.

38.	In Application by ICRAF Re Willingal, a case decided before the Human Rights Rules came into place in 2010, the court approached it this way. It first determined that ICRAF was a body that had an interest in the protection and enforcement of human rights and granted leave to ICRAF. The court said:

“ICRAF is a community interest group, which is incorporated under the Associations Incorporation Act (Ch. No. 142). According to its Constitution or Charter, a copy of which is before the Court, its objectives include the promotion of the rights and freedoms of the people of Papua New Guinea as enshrined in the internal laws of Papua New Guinea, particularly the Constitution.”

39.	There is a fundamental difference here that must be appreciated. In Application by ICRAF Re Willingal leave was granted to ICRAF to be a party to the proceedings, and ICRAF was represented by a lawyer. Here the situation is that the aggrieved is the plaintiff and they wish for a non-lawyer to represent them. In my view this distinction must be always kept in mind in deciding the issue of whether to grant leave.

40.	Considering that there are no prescribed procedures, I must determine the procedures as I am required to do under Section 22 of the Constitution.

G	ADDRESSING THE FIFTH ISSUE 

41.	As a National Court judge, I am empowered under Section 22 of the Constitution to determine relevant procedures to enforce human rights and freedoms. The procedure is specific to cases where the plaintiff has applied to court to enforce their rights but seek representation from a non-lawyer. Section 22 states:

“22. Enforcement of the Constitution.
 
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.”

42.	In The State v Aila Woila (No 2) [1978] PNGLR 113 the court held that it has a duty, stemming from ss 22 and 57 of the Constitution to see that court architecture does not render ineffective the exercise of the constitutional right of an accused to effective legal representation.

43.	In my considered view, there is a need to put in place supporting machinery considering the lack of procedure to deal with non-legal representation where there is vigorous opposition and such opposition is premised on the Lawyers Act. I also state that the procedures I make here are specific to Madang, as each location in Papua New Guinea has its own challenges with regards to availability of lawyers and their charge out rates, the capacity of the Public Solicitors Office, issues arising from conflict of interest of lawyers, and the economic, social and cultural conditions present.

44.	The procedure is also not of universal application but limited to the circumstances of the present case.

45.	So, I proceed to make the specific procedural machinery to give effect to Section 57(1) of the Constitution, taking into account Order 23 Rule 6 of the Human Rights Rules and the Lawyers Act.

46.	The first step is to ascertain if the representation is objected to. If it is objected to, it may be prudent to request the plaintiff to file an application by way of a notice of motion and supporting affidavit, invoking the National Court’s jurisdiction under Section 57(1) of the Constitution and Order 23, rule 6 of the Human Rights Rules 2010. The court will consider the application in light of the considerations enumerated in Order 23, rule 6, paragraph (b) to (e). If it is not possible for the plaintiff to file an application, then the court may enquire into the circumstances of the plaintiff on its own motion.

47.	If the application is not objected to, procedures outlined in steps two (2) to seven (7) should be followed by the court. In determining an application that is objected to, three (3) of the main considerations the court will take into account are listed in steps two (2) to four (4), inclusive.

48.	If leave is granted to the non-lawyer representative the court will be required to explain to the plaintiff, the implications outlined in step 5 of engaging a non-lawyer representative. This must be done before the representation commences.

49.	The second step is for the court to establish whether it is a human rights matter. It may be that the originating process may have other causes of actions pleaded, and the court has to determine whether it is appropriate to allow the non-lawyer to appear as a representative.

50.	The third step is for the court to establish the interest of the representative. That is, does the representative have an interest in the protection and enforcement of human rights.

51.	The fourth step is for the court to find out why the person is not able to engage the services of a lawyer. It may mean that the plaintiff or defendant must appear in person before the court and explain the reasons why they are engaging a non-lawyer as a representative. The reasons are many and varied. The overriding consideration is the interests of justice. This will be determined by evidence from the representative if the aggrieved is unable to be in court, but the first line of inquiry is directed at the party. They must provide evidence as to why they are not able to either appear for themselves or engage the services of a lawyer. Some considerations in relation to natural persons, include a person:

•	in an oppressive or abusive relationship;
•	who is incarcerated whether lawfully or not;
•	who is impecunious;
•	that is medically indisposed;
•	living with disability, be it physical, visual or mental or any other disability;
•	prevented by oppressive customary practices;
•	who is illiterate;
•	cannot speak and understand English well;
•	living in an area where legal services are difficult to access;
•	whether the public solicitors office is able to receive instructions; and
•	that has not reached the age of majority. 

52.	The list is not exhaustive and will require the court to form an opinion before the representation on behalf of the aggrieved by the non-lawyer is allowed by the court.

53.	The fifth step is for the aggrieved person or persons to appear in court (if it is possible) for the court to explain to them the implications of not engaging the services of a lawyer before they make their decision as to who should represent them. The court’s explanation should cover the following:

•	Their representative may not be able to understand the complexity of the procedural and substantive law;
•	If they lose the case, they suffer the likelihood of having costs awarded against them;
•	That their representative is representing them without any insurance; and
•	That they are not required to pay any legal fees to their representative, for example by their representative issuing an invoice to them.      

54.	It must be emphasised that whoever represents the aggrieved person cannot do so in expectation of a fee, reward or payment. This would be contrary to the Lawyers Act, particularly Section 60. The representation is allowed due to the fact that the aggrieved person is unable to fully and freely exercise their rights to come to court. This however does not mean that the court is prevented from ordering costs in favour of the aggrieved in an appropriate case.

55.	Additionally, to allow a non-lawyer to represent a person in a human rights matter in expectation of a fee or reward, even if that person is a registered human rights advocate is illegal. A person who can afford to pay for the services of a lawyer must engage a lawyer. Law is a complex subject, requiring mastery of complex principles and use of technical language which a person has to undergo rigorous training to achieve a level of competency. Even after training, a person has to be a fit and proper person before he or she can be admitted to practice law. And yet even after training, lawyers often still don’t get it right. Granting leave to a non-lawyer therefore has to be considered carefully, weighing out the interests of all parties including the interest of fair and efficient administration of justice.

56.	 Claiming breaches of human rights would mean that another person has been alleged to have infringed another person’s rights and or freedoms, and they will be put through expenses to defend the matter. So, it requires that the case is proceeded on carefully. 

57.	Having outlined the requirements of the law as I see it, I now turn to addressing the sixth issue.

H	ADDRESSING THE SIXTH ISSUE

58.	I must now decide whether Mr Asivo should appear for the plaintiffs in this matter.

59.	 Based on my discussions and analysis of the relevant laws, I have come to the conclusion that in this particular case, I must initiate the steps I have supplied based on Section 22 of the Constitution, before I decide whether leave should be granted to Mr Asivo.

I	CONCLUSION AND ORDERS 
60.	In consideration of the law and the circumstances of this case, I make the following orders:

1.	Matter is adjourned to 6 October 2020 at 9.30am for the court to allocate a special fixture to commence the procedure it has supplied pursuant to Section 22 of the Constitution before the court decides pursuant to Section 57(1) of the Constitution and Order 23 rule 6 of the Human Rights Rules 2010 as to whether leave should be granted to Mr Asivo to represent the plaintiff;

2.	Order No 1 also applies to related proceedings stemming from In re, Enforcement of Basic Rights under the Constitution of the Independent State of Papua New Guinea, Section 57 (2020) N8221 where the plaintiff seek representation from Mr Asivo to act as their representative;

3.	No orders as to costs; and

4.	Time is abridged.
Orders accordingly
Thomas More Ilaisa Lawyers and Attorney: Lawyers for the Defendants