Two Pathways for Overseas Lawyers to Practice in Papua New Guinea

According to current National Court decisions, overseas “barrister or solicitor” can come in and appear in the National and Supreme Courts WITHOUT admission to the bar and a current practising certificate.  

Overseas barristers and solicitors brought in by law firms or clients in the country only have to apply for and obtain the Attorney General’s Certificate of Authorisation issued under section 15[1] of the Attorney General Act 1989. 

 

In National Capital District Commission v Internal Revenue Commission [2021] PGNC 277; N9142 (20 September 2021), in response to an application by the Central Provincial Government (“CPG”) to remove overseas counsel (acting for NCDC) from appearing in Court on the ground that overseas counsel had not obtained the AG’s certificate, His Honour Anis J. ruled that section 15 applied only to overseas “barristers or solicitors”, but not to “lawyers” as defined in PNG Law. 

 

The Court held that since the word “lawyer” is defined in the Lawyers Act as a “person who has been admitted to practice as a lawyer under this Act”. Therefore Section 15 applies to a barrister or lawyer who is practising overseas ONLY, and not to overseas lawyers who are also practising in Papua New Guinea. 

 

Thus, “lawyers” are those legal practitioners who have been (1) admitted to the Bar in PNG and (2) have a current practising certificate. Section 15 does not apply to those overseas barristers and solicitors who have NOT been admitted and do not possess a practising certificate. 

 

The Court in OS 11 of 2021 extensively quoted Downer Construction Ltd v. Allan Marat et al in which His Honour Sevua J. expressed opinions about Section 15 of the AG Act. In that case, the Applicant sought Judicial Review of the AG’s refusal to grant a Section 15 certificate to overseas counsel (who was admitted to practice in PNG). His Honour Sevua J opined that Section 15 could not be held to apply to lawyers who have been admitted to practice in PNG. Curiously, whilst expressing those opinions, His Honour did not declare that Section 15 did not apply in that case, but made formal orders that the then-Attorney General grant the Section 15 approval to the overseas counsel for the applicant. 

 

The OS 11/2021 and Downer case could effectively create TWO pathways for overseas lawyers, barristers and solicitors, to appear in the National and Supreme Courts: The first is by Admission and Certification under the Lawyers Act. This applies to both lawyers in PNG and lawyers overseas. The second method is by AG authorisation under Section 15 of the Attorney General Act 1989. 

 

In OS 11/2021, CPG’s motion and submission argued that Section 15 of the AG Act was complimentary to the Lawyers Act. In fact this is the express provision of subsection (6) of of s. 15 of the AG Act which states:

 

“(6) The provisions of this section are in addition to, and not in derogation of, the requirements of the Lawyers Act 1986.”

 

CPG argued that Section 15 is a mandatory requirement for overseas based barristers or solicitors, including “lawyers” admitted to practice in PNG and who possess a current practising certificate. In reading the Lawyers Act and the AG Act s. 15 together, it was argued that the proper construction of s. 15 provides that the aggregate qualifications for an overseas-based lawyer to appear in the PNG National and Supreme Courts are: 

 

                     (a)         Admitted to Bar and has signed the Roll (Lawyers Act)

                    (b)         Possesses Unrestricted Practising Certificate (Lawyers Act)

                     (c)         Possesses AG Certificate to Appear (Attorney General Act)

 

However, the Court’s ruling effectively means (c) can stand alone and apart from (a) and (b). Whilst overseas-based lawyers, barristers and solicitors have two pathways to practice in PNG, PNG lawyers have only one pathway for practice in PNG, that is by way of the Lawyers Act. 

 

It would effectively mean that, contrary to the express provision of subsection (6), Section 15 is NOT in addition to the requirements of the Lawyers Act, but a Stand-alone admission requirement for overseas “barristers” and “solicitors”. 

 

CPG chose not to appeal the ruling to the Supreme Court as it would not have served its purpose in defending against the substantive claim in OS 11 of 2021. 

 

In light of the Downer case not declaring that AG Section 15 did not apply to overseas counsel who are admitted to practise in PNG, and OS 11/2021 being a ruling on interlocutory motion rather than a substantive ruling and declaration, and further that the Supreme Court has not yet had the opportunity to rule on the question, it remains open to parties in existing and future cases to raise the question before either the Supreme and National Court. 

 

Ganjiki D. Wayne, LLB, LLM

 

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[1] 15. EMPLOYMENT OF BARRISTERS, ETC., PRACTISING OUTSIDE THE COUNTRY. 

(1) The Attorney-General may, in his discretion, issue to a barrister or solicitor who–

(a) is a non-citizen; and

(b) ordinarily practises as a barrister or solicitor outside the country; and

(c) is not ordinarily resident in the country,

a certificate in the prescribed form authorizing that barrister or solicitor to appear in a case before the National or Supreme Court.

(2) A barrister or solicitor who–
    (a) is a non-citizen; and
    (b) ordinarily practises as a barrister or solicitor outside the country; and
    (c) is not ordinarily resident in the country,
is not entitled to appear before the National or Supreme Court in any case without a certificate under Subsection (1).

(3) An application for a certificate under Subsection (1) shall be made by the lawyer proposing to instruct the barrister or solicitor in respect of whom the application is made and shall be accompanied by–

    (a) evidence that the barrister or solicitor has obtained a work permit under the Employment of Non-citizens Act 1978; and

    (b) evidence of the qualifications and experience of the barrister or solicitor; and

    (c) a certificate to the effect that there is no lawyer who–

(i) is a citizen; or

(ii) is normally resident in the country,

available and competent to appear in the case; and

(d) such other information as the Attorney-General may require.

(4) In determining whether or not to grant a certificate under Subsection (1), the Attorney-General shall have regard to–

    (a) the academic and practise qualifications of the barrister or solicitor; and

    (b) the degree of difficulty of any legal issues which might reasonably be expected to arise in the matter in which it is proposed to instruct the barrister or                     solicitor to appear; and

    (c) whether the matter is one in which, in the opinion of the Attorney-General, a competent lawyer practising within the country could be expected to appear; and

    (d) any other relevant matter.

(5) A certificate under Subsection (1) authorizes the barrister or solicitor named in the certificate to appear in all applications, interlocutory or final, in the case specified in the certificate.

(6) The provisions of this section are in addition to, and not in derogation of, the requirements of the Lawyers Act 1986.

How to Inspire a Nation

I have long held a grievance against our nation’s leaders: That they have not done and are not doing enough to inspire the nation. They have done great things for the nation. They have devised policies, delivered infrastructure, introduced reforms, managed international affairs to market our nation world-wide, and they have succeeded in their personal lives and endeavours (more or less). But we have yet to experience the kind of leadership that can rally a nation to action.
Change, the kind we want to see, has to be the result of intentional action of people, not just the policy of governments. People take action for two reasons. First they can be moved externally. Through the reward for positive action and threat of punishment for negative action. Second, they can be moved to action through internal conviction. Internal conviction is the most powerful kind of motivation. It is triggered by a belief in one’s heart. He has to be convinced of a certain purpose, a cause, a vision. The Conviction has to be personal. One has to believe that he will acquire a personal reward. Particularly, the reward of personal satisfaction and fulfilment – universal needs. If they believe it strong enough, they will take the necessary action to realise a purpose.
This is lacking in our country. The people are not convinced enough to take a particular action to cause the kind of change at the desired time. For the number that is convinced enough to take the desired action, they pick up their inspiration either spontaneously, sporadically, or accidentally. Whilst the result is good, it is not yet wide enough and united enough. Leaders, especially Members of Parliament, and more so the Prime Minister, have the amazing opportunity of a default platform from which people will listen. Those of us who try to inspire don’t have that kind of platform. As I write this I am sitting on an armchair with a plywood straddling the arms of the chair like a tray in economy class on Fokker 100, in my little home surrounded by my kids yelling for my attention. Hardly the setting of a leader worth the attention of multitudes. These words will be published on a blog post that will be read by only a handful of people who have internet access. The multitudes will not read this. But they will give their attention when the Prime Minister speaks. Therein lies his true power and his greatest opportunity to trigger significant change. The power to speak to their hearts and instil in them a deep conviction. To convince them of a purpose and the need for their participation and action. To convince them to change their ways.
Papua New Guineans are feelers first, listeners second, seers third, believers fourth, and actors last. For the majority, reading is not even in that process, so I can only write to the few. For hundreds of generations we learned by listening and seeing. That mode of learning is still prevalent. To inspire them, our leaders (the ones whom we listen to by default) must speak words of wisdom, wrapped by the appropriate passion, and backed by their own actions. Just like our ancestors spent time by the fire to communicate ancient values through stories and justify their next courses of action and rallied action, our leaders must return to the fireside and speak to our hearts.
Don’t talk to us about policies and politics. We understand already that you need us to support your party and your policies. We will decide that going forward. What we need is to be convinced about what we need to do and why we need to do it – not just us the few, but us the multitude.
I have numerous times attended the Independence Day flag-raising ceremonies on Independence Hill, and heard Prime Ministers deliver their speeches, and have in all those times walked away disappointed. Disappointed primarily because apart from the great sense of pride and joy I feel in that atmosphere; my heart was not stirred. The excitement I experienced and observed in so many Papua New Guineans withered away only a few days after. I suppose it is because speech-writers felt a need to sell the government’s achievements rather than rally action. Our current Prime Minister is a great orator especially in Tok Pisin. He would do well to address the nation in Tok Pisin regularly on radio and television. He needs to be heard more than read. He has been described as a can-do PM. And I would agree in light of great leaps of faith he and his government have taken since taking office. With that backing he can speak about a can-do attitude of all Papua New Guineans. He could communicate the ability to dream big and be confident in one’s own abilities. To convince people to change their ways and attitude.
Perhaps we can take a hint from the movie Invictus, in which Mandela and Pienaar are discussing leadership and how to inspire others. Piennaar offers that it is too lead by example. Mandela replies “I sometimes think it is by using the work of others.” While these weren’t actual Mandela words, the movie script is accurate in principle. Our elders would tell stories of others to inspire action. Stories are universally impactful. Jesus used stories powerfully to communicate lessons and inspire action.
So speak. Speak of the envisioned future. The power of united action. Speak of a higher purpose. Speak to friends and families and individuals, not just subjects of a nation. Speak frequently and regularly. Not just once a year. But once a month and maybe every week. While this may seem like a big investment of time, I believe it is time well invested. Rallying people to action is priceless. It would be the most impactful means of bringing about the desired change in our nation.

My Most Prized Possession

Grandad gave me this NIV Student Bible 10 years ago yesterday. My most prized possession. But so what. Many have had bibles longer than 10 years. Having a bible for any period of time has no bearing on how much growth you've had spiritually. The reading, studying of and meditation on the Word is vital for growth. Having the Word available in paperback or electronically on your phone without actually diving into it won't help in the edification of your spirit and mind. It's like attending a great banquet of the best food imaginable and not taking a single bite. And relying only on preachers to tell it to you is like eating their left-overs rather than serving your own. Reading wise memes on FB is like eating the appetisers only and never progressing to mains. 

A preacher once said, "dirty Bible, clean Christian. Clean Bible, dirty Christian." So how's your Bible doing? Is it worn out with a constant flipping of the pages, and pen markings and highlighting and stuffed with notes and cross references etc? Or is "as good as new"? 

I'm sharing with you this reminder to myself to not allow the single greatest and unparalleled source of wisdom for life on earth (for salvation, love, relationships, leadership, emotional stability, and even business) to go unstudied. 

"but his delight is in the law of the Lord,

and on his law he meditates day and night.

He is like a tree

planted by streams of water

that yields its fruit in its season,

and its leaf does not wither.

In all that he does, he prospers"

~ Ps 1

Heavenise Day! 

#Foodforthoughtdaily #WisdomFaithAction 

I believe in Marriage: The Union of One Man and One Woman

My wife and I celebrated our 5th Wedding Anniversary on the 17th of September this year. This was my Facebook post reflecting on the institution of marriage:

The best thing about marriage is the synergy. Whatever my motivation, inspiration, creativity, ability to love, commitment to serve, strength under pressure, determination, perseverance, wit, wisdom, courage, and happiness, or anything praiseworthy—it multiplied after marriage. Not just doubled, but quadrupled and more. 

I believe in the Union of One Man and One Woman. I believe in the power that comes from within it; the added value to the world, the impact; the simultaneous vulnerability and safety; the meeting of weakness and strength; the practice of transparency; the increase of patience through practice; the strength to forgive; the humbling of arrogance; a safe place for boasting; the best place for correction.

Marriage is a lifelong school for love. Love well in there, and loving the world becomes easier. 

Choose wisely. Two is better than one. Three (God included) is even better! 

To the woman who multiplies the best of me, Happy Anniversary. 

#AnniversaryInspiration #foodforthoughtdaily

HOW TO GET RIGH - Book Review Thus Far...

Felix Dennis talks, one of UK's richest, about three starting (pole) positions for getting out and getting rich, and the excuses those three positions usually have:

1. Young, Penniless and Inexperienced--For him this is the best place to start. Because you have nothing to lose. The excuse of being young, inexperienced and lacking in capital actually can be overcome with the compensation of less risks than the other two, having more energy to cope with failure and hard work, and therefore can become leverage. 

2. Slightly Better Off and On the Way Up-- Those who are advancing with a "halfway decent job". Their obstacle is actually what they already have achieved already. 

3. Senior Manager/Professional -- Those at the top range who probably have a mortgage and a family to support. These folks are comfortable and do not want to risk losing the security for the mortgage and the happiness of the family. 

Which one do you think you fit in? I think I am number 2. Those of us there have to develop a mindset that will realise that whatever we have achieved thus far is only a tiny glimpse of the possible achievements we can have in life, and to learn to let go of what is average to reach for what is greater. Greater influence, greater impact, greater income, greater freedom and greater happiness, greater satisfaction. 

Musicians' Double Duty

Gospel Musicians have a Responsibility to demonstrate Godliness in all aspects of their lives. It is not enough to make music about God and hope that people will be touched and changed. A musician must also show the power of the message he preaches in the life he lives. Music originated in heaven. The Devil doesn’t have an original product. He just takes what God made and abuses it. Music has always been the most effective medium for communicating an idea. Even without words music is a language the speaksn  to the inmost parts of human beings. Capable of inciting any emotion within us. Music can create and sustain an idea within you.

 

Those who make music are bestowed with a powerful gift. For those who create Gospel music, the music you create is inherently good. It is a medium for “good news”, the best news in fact. The news to the world about a powerful loving God who wants to have a personal relationship with the humans He created. With the power to create a medium that carries such a message and sustain that message in people, gospel musicians are more than music makers. They are messengers. But they are also more than messengers. They are keepers of secrets: through the rhythm, the melody, and lyrics they put together are able to constantly remind the hearer of the Gospel message—God’s message.

 

It is for that reason that gospel musicians have two great responsibilities. First, they must ensure that the message they encapsulate in the songs they write, is an accurate reflection of the nature and will of the God they are proclaiming. In practical terms this means writing songs that are faithful, true and consistent to the Word of God. Many gospel songs today, when considered carefully, are not theologically sound. When measured against the truth found in the Word, they fail to measure up. Songwriters are tempted to write their own opinions and thoughts into the lyrics. This is all well and good. But our thoughts and ideas have to be in line with God’s will for people’s lives. And God’s will isn’t limited to only the few aspects of our lives. He doesn’t separate our professional lives while ignoring our private thoughts and emotions. He is a God of all and of the whole being. Our thoughts and deeds and relationships should reflect His will, which is by default the best and the greatest. Higher than ours. The Bible says for us to “lean not on our own understanding” (Pr 3:5), so when a songwriter starts with a thought, an understanding, his next step would be to revert to what Scripture and the Holy Spirit say about such a matter. And where his thought is inconsistent with the latter two, then the latter two must prevail over his understanding.

 

I have long lamented, and have publicly stated before that writers of gospel songs must write with depth and truth. We have enough songs that speak to the feet to dance and the hands to clap and the hips to sway, but we needs songs that will speak to the heart, supplying the joy, and to the mind, supplying the reason for the dancing. Songs that tell the facts. That proclaim the unchanging nature and will of God. Songs about facts that transcend our emotions and changing desires. On some days we can sing this is my desire to live for you alone, but such a declaration by us isn’t sustainable. For on most days we live for ourselves. Yet the fact that God remains that God is faithful, God is Good, Sovereign and God is everlasting. And when we proclaim the facts that remind us of that, it makes our hearts truly rejoice, and naturally invokes in us a desire to live for him alone.

 

So musicians, write with depth and truth. Don’t just give us the music and shallow babblings. Give us the Word.

 

The second responsibility of the Gospel musician, is probably tougher. It is the responsibility to live life faithful to the Christ he proclaims. It is neither satisfying to fellow Christians,  nor is it appealing to seekers, to see a Gospel musician who lives like he has not been redeemed by the Gospel. Christendom suffers enough from the duplicity of its members. Musicians who sing about holiness, about purity and the redemption found in God and His word, should at the very least live like that power has worked already in them. If that power has not yet worked in them then they should not be in the business of singing about it.

 

Personally, I find it quite disappointing when I see gospel musicians in my country lead duplicitous lives. The world most likely looks on and wonders whether the God we proclaim really has the power to change lives. Because they see an unchanged life in the musical preachers of the Word.

 

The PNG gospel music scene has had far too many disappointments. Apart from a few other groups whose members have lived consistently the Christian life, most have fallen by the wayside. Many have lost the trust of the audience that once appreciated them. And when trust is lost, hearers are lost.

 

My prayer is that as the Gospel music industry picks up in our country, we will enjoy more songs that are true to the Word of God, and we will be able to witness musicians who are faithful ambassadors of the gospel that they sing.

National Goals: National Vision, Personal Strategy. (Part 4 of the "Dreams of a Nation" series)

In this next video in my Dreams of a Nation series, I look into the National Goals and Directive Principles, and try to make a practical connection between those national goals and our personal individual lives.

After the observations on the importance of the National Goals, I look into National Goal #1: Integral Human Development.