Namah challenges National Pandemic Act 2020 in court

Leader of the Opposition, Belden Namah has filed an Application in the Supreme Court on Wednesday challenging the constitutionality of the National Pandemic Act of 2020 (the “Act”) passed by the National Parliament on June 12, 2020.

Young and Williams Lawyers, Counsel for Namah, lodged the Supreme Court Application (SCC OS/4/2020) at 9.36am on Wednesday.

Namah in a statement said the Opposition has applied to have the Act struck down as unconstitutional under Section 41 of the Constitution by the Supreme Court.

He clarified that they have find the National Pandemic Act to be contrary to the Constitution for the following reasons:-

  1. Part VII of the Act (Finances and Procurement) offends against the principle of parliamentary control over raising and expending of public money, under ss 209, 210 and 211 of the Constitution.
  2. s.51 of the Act purports to excludes the operation of the National Procurement Act 2018 and the Public Finance Management Act, 1995 (as amended) during “a declared period.”  This, if valid, abrogates the powers and functions of supervision and control of the Auditor General, and the Public Accounts Committee, and vests them in the Controller, who may not be duly qualified, and who only reports to the Minister. This would be inconsistent with: (i) ss. 213-214, Constitution, and (ii) ss. 215-216, Constitution.
  3. in general terms, the Act as a whole fundamentally alters the constitutional system of government set out in Part VI of the Constitution, by removing the legislative power from the National Parliament and placing it with the National Executive. By doing so: (i) it impairs the supervisory and oversight powers of the National Parliament on the Executive, and (ii) it subjugates the powers of the National Parliament to the National Executive without reservation.
  4. Under s.63 of the Act, after the emergency period the Controller is obliged to report only to the Minister and the National Executive Council.   Parliament supervision and control is eliminated contrary to the constitutional provisions referred to above.
  5. Under Parts IV and VI of the Act there are significant penalties imposed.  These are so harsh and oppressive as to offend against s.41 of the Constitution.
  6. The Act is inconsistent with the freedom from arbitrary search and entry under s.44 of the Constitution Division 2. The Act appears to abolish that freedom altogether during a Declaration, beyond the legal notion of “regulate and restrict” and it is therefore unconstitutional.
  7. The Act provides for compulsory acquisition of property in a number of provisions, including s.45 and 46 of the Act, for example other than on just terms, contrary to s 53 of the Constitution, and for that reason alone, being inconsistent with the Constitution, is invalid and ineffective in its entirety.
  8. Section 61 of the Act, which provides that the Controller and his agents are not civilly or criminally liable for acts and omissions in carrying out their duties under the Act restrict the jurisdiction of the National Court to an extent not permitted by ss 37, 155, 166 and 157 of the Constitution, so those provisions of the Act are, for that reason, invalid and ineffective.
  9. Section 32 of the Act provides for the liberty of a person to be deprived in a Quarantine facility, to an extent not permitted by s.44 of the Constitution. Those provisions of the Act are, or that reason, invalid and ineffective.
  10. Part III of the Act (Stakeholder Engagement) in general and s. 21 of the Act in particular, empowers the Controller to require government employees to provide “support as required.” This offends ss.43 and 253 of the Constitution (freedom from forced labour). Section 43 of the Constitution is not one of the qualified rights mentioned in s.1 of the Act.
  11. The Act in various places abrogates the right to privacy under s. 49 of the Constitution, and is invalid for that reason.
  12. The Act in various places breaches the right to freedom of movement under s.52 of the Constitution beyond that which is permissible, and is invalid for that reason.
  13.  A State of Emergency under Part X of the Constitution is a constitutional power vested on the Parliament during “an Emergency”.

It provides for the power of the National Parliament to decide to temporarily suspend the rights and freedoms of people under the Constitution during certain situations defined as emergencies.

On proper interpretation of this part of the Constitution, particularly Part X, only the National Parliament has the power, in the appropriate circumstances, to make those decisions.

The Act purports to legislated for “a Public Health Emergency” otherwise than in accordance with Part X of the Constitution. It appears to be an attempt to enact what is essentially emergency legislation without the checks and balances of Part X of the Constitution.

Specifically, the following crucial powers of supervision and control are under the Act, abrogated and divested in the National Executive:

  1. Parliamentary control under s. 239 of the Constitution, and
  2. the functions of the Parliamentary Emergency Committee provided for under Sections 240-242.
  3. the Act under, ss. 8 and 9, creates and confers powers to the Controller well beyond what would normally be considered “reasonably justified in a democratic society having a proper regard for the rights and dignity of mankind,” contrary to s.41 of the Constitution (proscribed acts).
  4. the following constitutional rights and freedom of the people will be suspended and deprived, not regulated or restricted
  • liberty of the person (S. 42), and
  • freedom from forced labour (s.43)
  • freedom from arbitrary search and entry (S. 44), and
  • right to privacy (S. 49), and
  • right to freedom of information (S. 51), and
  • right to freedom of movement (S. 52), and
  • protection from unjust deprivation of property (S. 53)
  1. The Constitutional implications in the deprivation of these civil rights of the people under Section 233 of the Constitution will need the interpretation of the Supreme Court.
  2. the Act does not include provisions for "Extra-Territorial Application" of the Emergency law to PNG Citizens and subjects including PNG Flagged Vessels overseas; nor does it include its application to Foreign Flagged Vessels in PNG territory. The Bill does not include under the definition of "Vessel" reference to the Merchant Shipping Act and or the National Maritime Authority Act to allow the emergency law to apply to all vessels including PNG Flagged Vessels overseas and Foreign Flagged vessels in PNG territory. The role of the NMSA in this situation is not specified.
  3. the transitional and savings provisions under sections 53 and 54 of the Act has retrospective effect to all past actions, decisions, procurements, monies received and used.