SC1304
PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCA NO 84 OF 2013

APPLICATION PURSUANT TO CONSTITUTION, SECTION 18(1)

BELDEN NORMAN NAMAH MP
Applicant

V

RIMBINK PATO MP,
MINISTER FOR FOREIGN AFFAIRS & IMMIGRATION
First Respondent

THE NATIONAL EXECUTIVE COUNCIL
Second Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Salika DCJ, Sakora J,
Kandakasi J, Cannings J, Poole J
2013: 19 December,
2014: 29 January

CONSTITUTIONAL LAW – practice and procedure – application under Constitution, Section 18(1) (original interpretative jurisdiction of the Supreme Court) – application by Leader of the Opposition – declaration sought as to interpretation and application of Constitution, Section 42 (liberty of the person) – question of locus standi: whether applicant has standing to make application.

The Leader of the Opposition filed an application in the Supreme Court under Section 18(1) of the Constitution seeking declarations as to the constitutionality of arrangements, including memoranda of understanding, between the governments of Australia and Papua New Guinea as to the transfer of persons seeking asylum in Australia, from Australia to Papua New Guinea, for processing. He proposed to argue that those arrangements are unconstitutional as they are contrary to the rights of the transferees to personal liberty under Section 42(1) of the Constitution. The Supreme Court Rules 2012 require that before an application under Section 18(1) of the Constitution can be heard, the Court should declare that the applicant has standing. The applicant requested the Court to declare that he has standing, and based his request on the fact that he is a citizen, a member of the Parliament and the Leader of the Opposition and therefore he has a sufficient interest in the matter in light of the decision of the Supreme Court in Re Petition of MT Somare [1981] PNGLR 265. The respondents opposed the request on the grounds that: the principles in Somare only apply in respect of a challenge to the exercise of the legislative power of the Parliament; there was no evidence that the applicant had approached any person or authority that would have standing to seek the sort of relief that he seeks, before resorting to this action; the applicant is not asserting that any of his rights or freedoms are infringed by the acts that he seeks to challenge; procedures exist in the Constitution for enforcement of Basic Rights, including those in Section 42, by persons who claim that their rights have been infringed; there are factual issues to be determined, which are better dealt with by evidence from persons who claim that their rights are contravened.

Held:

(1)	The question of whether an applicant under Section 18(1) of the Constitution has standing is a matter at the discretion of the Supreme Court, to be exercised in accordance with the rules of the underlying law formulated in Re Petition of MT Somare [1981] PNGLR 265.

(2)	The Somare rules as to standing may be described as:

(a)	The applicant will have standing if he or she has a sufficient interest in the matter, which will be demonstrated if the applicant:

•	has personal interests or rights that are directly affected by the subject matter of the application; or

•	is a citizen who has a genuine concern for the subject matter of the application; or

•	is the holder of a public office, the functions of which relate to the subject matter of the application.
 
(b)	The application must raise significant (not trivial, vexatious, hypothetical or irrelevant) constitutional issues.

(c)	The applicant must not be a mere busybody meddling in other people's affairs and must not be engaged in litigation for some improper motive, eg as a tactic of delay.

(d)	The fact that there are other ways of having the constitutional issues determined by the Supreme Court does not mean that a person should be denied standing.

(3)	The rules as to standing developed as part of the underlying law in Somare do not apply only in relation to challenges under Section 18(1) of the Constitution to the exercise of legislative power by the National Parliament. Those rules also apply to challenges to the exercise of executive power by the executive arm of the National Government.

(4)	The matters to be taken into account in determining whether an applicant has standing are generally the same irrespective of the nature of the act (whether legislative, executive or judicial) or person or body (whether public or private, whether part of the legislative, executive or judicial arms of government) involved.

(5)	The likelihood that the hearing of an application under Section 18(1) of the Constitution will involve disputed facts or require factual issues to be determined will not usually be a weighty consideration in determining whether an applicant has standing, given that Order 3, Rule 3 of the Supreme Court Rules 2012 provides for a Judge to take evidence and find facts for the purposes of the substantive application.

(6)	Applying the four Somare rules to the facts of this case:

(a)	the applicant has a sufficient interest as he is a citizen who has a genuine concern for the subject matter of the application;

(b)	he wishes to raise significant constitutional issues;

(c)	he is not a mere busybody and he has no improper motive;

(d)	though there are at least three other ways of having the constitutional issues determined by the Courts, this does not mean that he should be refused standing.

(7)	The likelihood that factual issues will need to be determined has little bearing on whether the applicant has standing.

(8)	The applicant therefore has standing to make the application. His request for a declaration that he has standing was granted.

Cases cited

The following cases are cited in the judgment:

Application by Francis Gem (2010) SC 1065
Application by Tom Ireeuw [1985] PNGLR 430
Application of Jim Kas (2001) SC670
Belden Norman Namah MP v Rimbink Pato MP (2013) N4990
Belden Norman Namah MP v Rimbink Pato MP (2013) SC1241
Bill Skate & Peter O'Neill v Jeffrey Nape (2004) SC754
Complaint by Michael Tambeng (2013) N4959
Jonathan Paru v The State (2012) N4572
Kaseng v Namaliu [1995] PNGLR 481
Mineral Resources Development Corporation Ltd v Ombudsman Commission (2008) SC931
Re Application by Anderson Agiru (2001) SC671
Re Application by Benetius Gehasa (2005) N2817
Re Complaint of Jacob Hendrich Prai and Otto Ondowame [1979] PNGLR 42
Re Complaint of Rosa Jack (2006) N4153
Re Conditions of Detention at Bialla Police Lock-Up (2006) N3022
Re Election of Governor-General (No 1) (2003) SC721
Re Kaka Ruk [1991] PNGLR 105
Re Kopa Kaipia (1989) N709
Re Michael Thomas Somare MP and Sir Julius Chan [1980] PNGLR 255
Re Moki Nikints [1988-89] PNGLR 164
Re Petition of MT Somare [1981] PNGLR 265
Re Petition of MT Somare (No 2) [1982] PNGLR 65
Re Reference by Ken Norae Mondiai (2010) SC1087
Re Ricky Yanepa [1988-89] PNGLR 166
Re Theresa Maip [1991] PNGLR 80
Re Wagi Non [1991] PNGLR 84
Re Yamson Vamble (1989) N743
SCR No 12 of 2001; Re Validity of National Capital District Commission Act 2001 (2001) SC680
SCR No 4 of 2001; Re Validity of National Capital District Commission Amendment Acts (2001) SC678
Southern Highlands Provincial Government & Others v Sir Michael Somare (2007) SC854
Special Reference pursuant to Constitution, Section 19; Reference by the East Sepik Provincial Executive (2011) SC1133
Supreme Court Reference No 3 of 1999; Special Reference under Section 19 of the Constitution by the Ombudsman Commission re Sitting Days of the National Parliament (1999) SC628
The State v Linus Rebo Dakoa (2009) N3586
The State v Peter Kakam Borarae [1984] PNGLR 99
Titi Christian v Rabbie Namaliu (OS No 2 of 1995, 18.07.96, unreported)

REQUEST

This was a request for a declaration that an applicant under Section 18(1) of the Constitution has standing to make the application.

Counsel

N M Cooke QC & L R Henao, for the applicant
I Molloy & P Kuman, for the respondents

29th January, 2014 

1. BY THE COURT: The Leader of the Opposition Hon Belden Norman Namah MP requests that the Supreme Court declare that he has standing to make an application to the Court under Section 18(1) of the Constitution, which states:

Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.

2. He has already made the application under Section 18(1). It was filed on 1 August 2013. He needs a declaration as to his standing before he can have it heard. The notion of 'standing' or locus standi refers to the legally recognisable right or capacity of a person to commence proceedings. The respondents to the application are the Minister for Foreign Affairs and Immigration Hon Rimbink Pato MP, the National Executive Council and the State. They oppose the applicant's request for a declaration that he has standing.

THE APPLICATION

3. The applicant seeks declarations as to the constitutionality of arrangements, including memoranda of understanding, between the governments of Australia and Papua New Guinea as to the transfer of persons seeking asylum in Australia, from Australia to Papua New Guinea, for processing. He wants to argue that those arrangements are unconstitutional as they have resulted in transferees, generally called asylum seekers, being detained for long periods at the relocation or regional processing facility at Manus Province, without authority of a court and otherwise contrary to their rights to personal liberty under Section 42 (liberty of the person) of the Constitution.

4. The applicant seeks to prosecute a cause of action and obtain relief based on actual, not hypothetical, facts. It appears to be a proper application filed in accordance with Order 4 (applications and references under the Constitution, Sections 18 and 19) of the Supreme Court Rules 2012. No objection to its competency has been made by the respondents. This is in contrast to a similar application by the applicant filed earlier in 2013, which was dismissed by the Court (Cannings J, Kassman J, Murray J), upon upholding an objection by the same respondents to its competency (Belden Norman Namah MP v Rimbink Pato MP (2013) SC1241).

PROCEDURE

5. The Supreme Court Rules 2012 make it necessary for an applicant under Section 18(1) to request a declaration as to his standing, in three ways:

•	Order 4, Rule 1 requires that an application shall be instituted in Form 1 and "be endorsed with … an application for a declaration that the applicant has standing to make the application";

•	Order 4, Rule 3(a) requires that an application under Section 18(1) state "the basis on which the applicant claims standing to make the application";

•	Form 1, paragraph 1 provides that the application must state that "the applicant requests the Court to declare that the applicant has standing to make this application".

6. We are only dealing at this stage with the request by the applicant for a declaration that he has standing. We are not dealing with the substantive application under Section 18(1). It will only be heard if the applicant's request is granted.

THE REQUEST

7. The applicant bases his request on the fact that he is a citizen, a member of the Parliament and the Leader of the Opposition. He claims that this gives him a sufficient interest in the matter in light of the decision of the Supreme Court in Re Petition of MT Somare (No 1) [1981] PNGLR 265, hereafter referred to as 'Somare'.

METHODOLOGY

8. We will determine the request in the following way:

•	first, we outline the grounds on which the respondents oppose the request;
•	what was decided in Somare will be explained;
•	Supreme Court decisions following Somare are summarised;
•	the rules as to standing, based on Somare and the cases following it, are set out;
•	we address the issue of whether the rules apply only to the exercise of legislative power by the Parliament, an important issue given that the applicant proposes to challenge the exercise of executive power by the Executive;
•	we apply the Somare rules to the facts of this case;
•	we address each of the grounds of objection to standing;
•	we conclude whether the request should be granted and whether the applicant has standing.

THE RESPONSE

9. The respondents oppose the request on the following grounds:

1	the Somare rules only apply when there is a challenge to the exercise of legislative power by the Parliament;

2	there is no evidence that the applicant has approached any person or authority that would have standing to seek the sort of relief that he seeks, before resorting to this action;

3	the applicant is not asserting that any of his personal rights or freedoms are infringed by the acts that he seeks to challenge;

4	procedures exist in the Constitution for enforcement of Basic Rights, including those in Section 42, by persons who claim that their rights have been infringed;

5	there are factual issues to be determined, which are better dealt with by evidence from persons who claim that their rights are contravened.

THE SUPREME COURT DECISION IN SOMARE

10. The decision of the Supreme Court in Re Petition of MT Somare [1981] PNGLR 265 is the leading case on the question of whether a person has standing to make an application under Section 18(1) of the Constitution. The Leader of the Opposition, Mr Somare, as he then was, was concerned about the proposed commitment of the Papua New Guinea Defence Force to a peace-keeping operation in Vanuatu. In the Parliament the Opposition unsuccessfully opposed the commitment of troops. So Mr Somare applied, by petition, to the National Court for declarations that two decisions of the National Parliament that led to the commitment of the Defence Force, were unconstitutional:

•	the decision to enact the Defence Force (Presence Abroad) Act 1980; and

•	the decision to approve commitment to the operation made under Section 205(2) (active service) of the Constitution, which states:

The Defence Force or a part of the Defence Force may not be ordered on, or committed to—

(a)	active service; or
(b)	an international peace-keeping or relief operation,

outside the country without the prior approval of the Parliament.

11. The petition came before Justice Pratt in the National Court (Re Michael Thomas Somare MP and Sir Julius Chan [1980] PNGLR 255). His Honour was concerned about whether the matter was properly before the National Court and whether Mr Somare had standing, so he referred those issues to the Supreme Court under Section 18(2) of the Constitution, which states:

Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.

12. The Supreme Court (Kidu CJ, Kearney DCJ, Greville Smith J, Kapi J, Miles J) unanimously agreed that the issues raised by Mr Somare's petition were not properly before the National Court. Constitutional issues fell within the exclusive jurisdiction of the Supreme Court under Section 18(1) of the Constitution.

13. As to the more contentious question of whether Mr Somare had standing to make the application, the Court was split. By a majority of 3:2 (Kidu CJ, Kapi J, Miles J; Kearney DCJ, Greville Smith J dissenting) the question was answered in the affirmative. The Judges in the majority each held that neither common law nor custom provided the answer to the issue of standing, so it was necessary to formulate rules of the underlying law to deal with it.

14. Kidu CJ stated, at pages 273-274:

In my view, in cases where the constitutionality or otherwise of an Act of the National Parliament arises, locus standi should not be restricted to any particular group.

The Constitution of this country provides that all power belongs to the people. (See the Preamble to the Constitution.) These powers are then given to three bodies — the National Parliament (legislative power), the Executive (the executive power) and the Judicial System (the judicial power). These powers are given with the clear understanding that they be used properly and constitutionally. In the case of the legislative power, the Constitution specifically says:

109	GENERAL POWER OF LAW-MAKING

(1)	Subject to this Constitution, the Parliament may make laws, ... etc.

That is to say that when the Parliament makes a law, it shall be constitutional — s. 10 of the Constitution also says:

All written laws (other than this Constitution) shall be read and construed subject to:

(a) 	in any case — this Constitution; and
(b) 	...
(c) 	...

The People, depository of all powers in Papua New Guinea, have, through the Constitution, directed that the Parliament make laws which comply with the Constitution. If the legislative power is exercised contrary to the Constitution, why should not the People come to this Court and complain? After all it is their power and they are, in my view, entitled to complain to the Supreme Court, in whom their power to determine the constitutionality or otherwise of an Act of the Parliament, is vested. As a beneficiary in trust is entitled to invoke the powers of the courts to ensure that the trustees act in their interest so should the People whose legislative power the Parliament exercises, complain to this Court if they think the Legislature acts contrary to the Constitution through which their power has been given to it.

The Constitution also obliges every person in Papua New Guinea "to respect and to act in the spirit of, this Constitution". (See the Preamble to the Constitution.) This includes Members of the Parliament. They are required, in this case, to ensure that laws they make are constitutional. They are also required, when taking office to swear that they will uphold the Constitution of Papua New Guinea. (See Order 5(3) of the Standing Orders of the National Parliament and Section 6 of the Constitution.) This obligation must mean something. For people such as Members of the Parliament to make this declaration and ignore it afterwards makes a mockery of the Constitution.

From the foregoing, I hold that the petitioner has the necessary standing to invoke the powers of this Court to determine the constitutionality (or otherwise) of the Defence Force (Presence Abroad) Act 1980.

15. Kapi J stated, at pages 295-296:

Having regard to all the matters I have discussed, I would formulate a rule that would draw a line between those who can and those who cannot have standing. At the same time, the modern view on locus standi is not restrictive as is the common law. …

A general principle that would suit the above description is the new English rule on locus standi. The English rule on locus standi was a result of much study by the English Law Commission. This rule was recommended by the Law Commission in its report on remedies in administrative law in 1975. The new rule would be that the applicant must have sufficient interest in the matter.

As to what is sufficient interest, I would adopt the objective test laid down by Lord Denning in R v Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd [1980] 2 All ER 378. It is not possible to lay down a workable definition for all cases because each case is different. I would leave it to courts to develop the application of the rule in individual cases.

Applying this to the present case I find that Mr Somare would have standing. As a member of the Parliament he belongs to the governmental body which has been invested with the power of law-making by the Constitution. In relation to the issue in this case, Mr Somare has raised, amongst other things, that the law-making body has not complied with certain provisions of the Constitution in passing the Defence Force (Presence Abroad) Act 1980.

If anyone has interest in the matter it is the members of the legislature who make the laws. It cannot be said that he is a mere busybody meddling in other people's affairs. He, as a member of the Parliament, has standing and can bring this matter to court. Having come to this conclusion it is not necessary for me to consider his standing as Leader of the Opposition.

Furthermore, Mr Somare, as a citizen, has standing. A citizen has standing where a question of non-compliance with the Constitution by the Parliament is involved.

This stems from the fact that the legislative power belongs to the People (citizens). This power is vested in the Parliament by the Constitution. The power given to the Parliament is to be exercised in accordance with the Constitution (s 100). If the Parliament has not complied with the Constitution and the members of the Parliament are not willing to bring the matter before the court then, in my view, a citizen can. A citizen, under our Constitution, has not only an interest for the due observance of the law but, more than this, has the legislative power. I do not think that standing ought to be restricted to members of the Parliament or leaders of political parties in the Parliament. They are politicians and may have political reasons for not wanting to come to court. Our Constitution would be at stake if nobody had standing in those circumstances.

It might be said that such a view might open the floodgates and the courts might be swamped with too many cases. I observe that in other countries this policy consideration often restricts the scope of locus standi. With respect, this is no question of policy. Under our Constitution the legislative power belongs to the People. The question is, would the ordinary citizens have any standing in court if the legislative power is not exercised in accordance with the Constitution? A citizen would have standing for the reasons I have already given. I do not think it is proper for this Court to deny a citizen right to locus standi by a policy consideration. After all, the judicial power belongs to the People (s 158 of the Constitution). It is the people's court and let them come by the hundreds if they have the right to come.

However, I consider that standing given to any citizen should be at the discretion of the court. In exercising this discretion the court should consider whether the applicant has exhausted other means of achieving the same thing. In this case the Leader of the Opposition opposed the motion and the Act but was unsuccessful in the Parliament. He also exhausted the means of getting this question referred under s 19 of the Constitution. His request to the Ombudsman Commission to refer the question was unsuccessful. There is no suggestion that other authorities will refer the question. I am not suggesting that a citizen's right to complain depends on whether or not he has tried other means. Rather, if he does this, this is an indication that he is genuinely concerned with the matter. A person who simply comes straight to the court as a delaying tactic or for reasons other than that he is genuinely concerned with the matter should not be heard.

16. Miles J stated, at page pages 305, 311 and 312:

The criteria to be taken into account in formulating a new rule of law as part of the underlying law are set out in Sch 2.3(1). The court is required to have regard to:

(a) 	in particular, to the National Goals and Directive Principles and the Basic Social Obligations; and

(b) 	to Division III.3 (basic rights) This appears to be a reference to Pt III Div 3.5; and

(c) 	to analogies to be drawn from relevant statutes and custom; and

(d) 	to the legislation of, and to relevant decisions of the courts of, any country that in the opinion of the court has a legal system similar to that of Papua New Guinea; and

(e) 	to relevant decisions of courts exercising jurisdiction in or in respect of all or any part of the country at any time,

and to the circumstances of the country from time to time.

The acknowledgement of basic rights which appears among the National Goals and Directive Principles indicates that it is intended that what is loosely known as the "rule of law" should apply in Papua New Guinea. It is declared in the Basic Social Obligations that all persons in the country have the basic obligations to themselves and their descendants to each other and to the Nation to respect and act in the spirit of the Constitution. It is a fundamental principle of the Constitution that Parliament may not validly act beyond the powers conferred on it. In interpreting the law the courts are required to give paramount consideration to the dispensation of justice. In interpreting the Constitution its provisions are to be given their fair and liberal meaning. All these considerations are in my view relevant to the formulation of a rule as part of the underlying law to deal with the questions now before the court. 

… I find it hard to see how it can be said that the Leader of the Opposition does not have a proper concern with the constitutional validity of that legislation. That his concern is genuine is illustrated by the fact that he took what steps were available to him in Parliament to block the legislation and that he thereafter unsuccessfully sought to enlist the assistance of the Ombudsman Commission under the Constitution, s 19. To borrow from the Canadian and United States cases, the legislation may be said to "strike at" the Leader of the Opposition "in its central aspects", and that he has such a "personal stake" in the outcome of the present proceedings as to assure the proper presentation of precise issues to this Court if and when it eventually comes to determine whether the Defence Force (Presence Abroad) Act 1980 is within the legislative competence of the National Parliament. The paramount consideration of the dispensation of justice, a fair and liberal interpretation of the provisions of the Constitution and the Basic Social Obligation to respect and act in the spirit of the Constitution all require a recognition of the petitioner's standing in the present proceedings.

17. The decision on the question of standing was handed down on 3 August 1981. A separate hearing on the substantive questions of whether the Defence Force (Presence Abroad) Act 1980 was valid and whether the Parliament's approval under Section 205(2) of the Constitution of the commitment of the Defence Force to the operation in Vanuatu was constitutional, led to a separate decision, delivered on 1 March 1982: Re Petition of MT Somare (No 2) [1982] PNGLR 65. On this occasion the Court's attention was focussed on the validity of the Parliament's approval of the commitment of troops, rather than on the validity of the 1980 Act. By a majority of 3:2 (Kearney DCJ, Greville Smith J, Miles J; Kidu CJ, Kapi J dissenting) Mr Somare's application for a declaration that the Parliament's approval was unconstitutional, was refused. As to the validity of the 1980 Act, only two Judges gave an opinion on the issue. Kapi J and Miles J refused the application for a declaration that it was unconstitutional. The other Judges did not address the issue.

18. We consider that it is indisputable that Somare establishes, at least, the following rules of standing:

•	A citizen has standing to apply under Section 18(1) of the Constitution for a declaration that an Act of the Parliament is unconstitutional, provided that he or she is raising significant constitutional issues and is not a busybody or challenging the constitutionality of legislation for some improper motive.

•	Any member of the Parliament, being by necessity a citizen, has standing to make such an application, subject to the same provisos.

•	Standing to make such an application is not restricted to the person who holds office as Leader of the Opposition.

19. The respondents accept the correctness of those rules. They do not argue that Somare was wrongly decided or that it should be overruled. They argue, however, that Somare should be confined to its facts; that it should be distinguished from the present case. We will examine this argument, which is critical to the respondents' opposition to the applicant's request for a declaration that he has standing, later in this judgment. We will now set out how Somare has been applied in other cases.

SUPREME COURT DECISIONS AFTER SOMARE

20. The rules on standing developed in Somare have been considered in a number of subsequent cases, in the context of applications to the Supreme Court under Section 18(1) of the Constitution to challenge the constitutionality of decisions of the Parliament. For example:

•	In Kaseng v Namaliu [1995] PNGLR 481 the Premier of Western Province applied by originating summons under Section 18(1) of the Constitution to challenge the constitutional validity of the Organic Law on Provincial Governments and Local-level Governments 1995. The question of his standing was non-contentious. It was accepted that as a citizen he had standing to make the application, which was by a 4:1 majority refused (Amet CJ, Los J, Hinchliffe J, Andrew J; Kapi DCJ dissenting).

•	In Titi Christian v Rabbie Namaliu (OS No 2 of 1995, 18.07.96, unreported) the Premier of Morobe Province applied by originating summons under Section 18(1) of the Constitution to challenge the constitutional validity of the Organic Law on Provincial Governments and Local-level Governments 1995. The question of his standing to make the application was non-contentious. It was accepted that as a citizen he had standing to make the application, which was by a 3:2 majority refused, as the issues raised were res judicata in light of the decision one year previously in Kaseng (Amet CJ, Hinchliffe J, Andrew J; Kapi DCJ, Los J dissenting).

•	In Application of Jim Kas (2001) SC670 the Governor of Madang Province applied by way of a reference under Section 18(1) of the Constitution for the Supreme Court's opinion on various questions of constitutional interpretation and application. The Court (Kapi DCJ, Sheehan J, Salika J) unanimously dismissed the reference. It was ruled invalid, as a reference of constitutional questions could only be made under Sections 18(2) or 19 of the Constitution. The applicant did not take up the Court's invitation to replace the reference with a Section 18(1) originating summons, under which a discrete cause of action could have been prosecuted. The Court indicated that the applicant would have had standing to make the application by originating summons. This was the first case in which the Court indicated that using Section 18(1) as a vehicle for putting constitutional questions in the form of a reference was improper.

•	In Re Application by Anderson Agiru (2001) SC671 the Governor of Southern Highlands Province applied by way of a reference under Section 18(1) of the Constitution to challenge the constitutional validity of Division III.8 of the Organic Law on Provincial Governments and Local-level Governments 1995, under which the National Executive Council withdrew the powers and functions and all finances of the Southern Highlands Provincial Government. The question of his standing to make the application was non-contentious, as was the use of a reference, rather than an originating summons, as the vehicle by which to put constitutional questions to the Court. Kapi DCJ held that, in view of Somare, "an interested leader or a private citizen may apply directly to the Supreme Court pursuant to Section 18(1)". The application was by a 3:2 majority granted (Kapi DCJ, Salika J, Sevua J; Amet CJ, Los J dissenting).

•	In SCR No 4 of 2001; Re Validity of National Capital District Commission Amendment Acts (2001) SC678 the member for National Capital District, Hon Bill Skate MP, filed a reference under Section 18(1) of the Constitution challenging the constitutional validity of two amendments to the National Capital District Commission Act 1990, which abolished the right of the member for National Capital District to hold office ex officio as Governor of the National Capital District. No issue was taken as to his standing to make the reference. Despite the earlier decision in Kas, no issue was taken as to the use of a reference, rather than an originating summons, as the vehicle by which to put constitutional questions to the Court. The questions that were the subject of the reference were unanimously answered in the affirmative and it was declared that the amending legislation was unconstitutional (Amet CJ, Injia J, Sawong J).

•	In SCR No 12 of 2001; Re Validity of National Capital District Commission Act 2001 (2001) SC680 the member for National Capital District, Bill Skate MP, filed a reference under Section 18(1) of the Constitution challenging the constitutional validity of the National Capital District Commission Act 2001, which abolished the right of the member for National Capital District to hold office ex officio as Governor of the National Capital District. No issue was taken as to his standing to make the reference. Again, despite the earlier decision in Kas, no issue was taken as to the use of a reference, rather than an originating summons, as the vehicle by which to put constitutional questions to the Court. The questions that were the subject of the reference were by a 4:1 majority answered in the negative and it was declared that the 2001 Act in question was constitutional (Hinchliffe J, Sheehan J, Injia J, Sawong J; Amet CJ dissenting).

•	In Re Election of Governor-General (No 1) (2003) SC721 Ila Geno, Chief Ombudsman, applied by originating summons under Section 18(1) of the Constitution for a declaration that the Parliament's decision to nominate Sir Albert Kipalan as Governor-General was unconstitutional on the ground that the Parliament had breached the procedures prescribed by the Organic Law on the Nomination of the Governor-General. His standing was challenged by various defendants. The Court ruled unanimously (Kapi CJ, Injia DCJ, Salika J, Jalina J, Sakora J) that Mr Geno had standing in his capacity as a citizen. The Court took into account that he had a particular interest in the matter as he was a member of the Ombudsman Commission, so there was a connection between his functions as Chief Ombudsman and the cause of action being pursued. He had done all that he could do to try to cure the alleged defects in the procedure by which Sir Albert had been nominated by writing to the Prime Minister and the Clerk of the Parliament, so he had demonstrated a genuine concern for the issues he wanted to raise. There were two other plaintiffs. The Ombudsman Commission was held to lack standing, while Bernard Narokobi, an unsuccessful candidate for nomination as Governor-General, was held to have standing. The application was successful in that the Court declared that the Parliament's decision to nominate Sir Albert was null and void.

•	In Bill Skate & Peter O'Neill v Jeffrey Nape (2004) SC754, the plaintiffs, the former Speaker and the Leader of the Opposition, applied by originating summons under Section 18(1) of the Constitution for a declaration that the decision of the Parliament to appoint the defendant Mr Nape as Speaker was unconstitutional. No challenge was taken to the standing of the plaintiffs. The proceedings were eventually withdrawn, after the Court (Kapi CJ, Hinchliffe J, Batari J) unanimously refused an application for an injunction restraining Mr Nape from performing the functions of Speaker pending determination of the application.

•	In Southern Highlands Provincial Government & Others v Sir Michael Somare (2007) SC854 the plaintiffs (including the Governor and other members of the Provincial Government) applied by originating summons under Section 18(1) of the Constitution for a declaration that the decision of the National Executive Council to declare a state of emergency in Southern Highlands Province and suspend the Provincial Government was unconstitutional.

The defendants argued that the plaintiffs lacked standing as the rules of the underlying law formulated in Re Petition of MT Somare [1981] PNGLR 265 were abolished by the Attorney-General Act 1989, which only conferred standing in public interest actions on the Attorney-General; which meant the Attorney-General would need to give his permission to the plaintiffs to commence relator proceedings. The argument was given short shrift by the Court. Kapi CJ remarked that in Somare the Court "had developed a new principle, namely, a citizen may have standing to bring an action involving a constitutional issue", which was not abolished by the Attorney-General Act, and that clearly the plaintiffs had standing.

Sakora J remarked that:

In relation to constitutional challenges such as here, the issue of standing to invoke the provisions of Section 18 of the Constitution was settled as long ago as 1981 in the seminal decision of the court in … Somare. I respectfully adopt the learned Chief Justice's discussion of that decision, and the restatement of the principle of the underlying law that had to be formulated … which is that a citizen has standing to bring proceedings involving matters of constitutional law … it is not as if these plaintiffs/applicants are mere meddlesome busy-bodies, cranks or mischief-makers who have nothing better to do than come to court with unmeritorious, frivolous and vexatious claims that have no remedies known to law. Their proceedings involve issues of serious constitutional matters.

The other members of the Court (Injia DCJ, Los J and Salika J) agreed that the plaintiffs clearly had standing. It was unanimously rules that the declaration of a state of emergency and suspension of the Provincial Government were constitutionally invalid.

•	In Mineral Resources Development Corporation Ltd v Ombudsman Commission (2008) SC931 the Corporation applied under Section 18(1) of the Constitution for declarations that it and its employees and agents, including the Managing Director, were not subject to the jurisdiction and control of the Ombudsman Commission and that the Commission's investigations into the affairs of MRDC and its directors were null and void. The question of the Corporation's standing to make the application was non-contentious. The application was unanimously refused (Kapi CJ, Gabi J, Hartshorn J).

•	In Re Reference by Ken Norae Mondiai (2010) SC1087 a group of forestry resource owners applied by way of a reference under Section 18(1) of the Constitution challenging the constitutional validity of the Forestry (Timber Permits Validation) Act 2007. The Court by a 3:1 majority (Injia CJ, Salika DCJ, Kirriwom J; Davani J dissenting; Sevua J not deciding) dismissed the reference. The majority followed the decision in Kas, finding that a reference of constitutional questions could only be made under Sections 18(2) or 19 of the Constitution. An objection to the referrers' standing was not ruled on.

21. It will be observed that the standing rules developed in Somare have not been changed in any substantial way by any subsequent Supreme Court decision. It might be thought at first glance that in Re Election of Governor-General (No 1) (2003) SC721 the rules were tightened as the Court seemed to impose requirements in addition to the plaintiff being a citizen. It was held that the Chief Ombudsman Mr Geno, a citizen, had standing, because the application he filed under Section 18(1) of the Constitution related to his functions as Chief Ombudsman and he had exhausted the available avenues of raising his concerns about the constitutionality of the nomination of the Governor-General.

22. However, that case actually supports the principle that lies at the heart of Somare: that a citizen will be presumed to have standing, provided he or she can demonstrate a genuine concern for the constitutional issues raised. It is implicit in the reasoning of the Judges in the majority in Somare (in fact this issue was expressly addressed by Kapi DCJ) that it is not sufficient that an applicant under Section 18(1) be a citizen. There are, indeed, additional requirements: that the citizen has a genuine concern or grievance, and is not a mere busybody or commencing the proceedings for some improper motive.

23. It is an understatement to say that Somare is good law. It is a seminal decision of the Supreme Court, eminently sound in principle, in which the Court developed the underlying law as there was no applicable custom and the common law was considered inappropriate to the circumstances of Papua New Guinea. It has stood the test of time for more than 30 years. It remains the leading case, which lays down fundamental rules for determining whether an applicant for relief under Section 18(1) of the Constitution has standing.

WHAT RULES SHOULD BE APPLIED WHEN DETERMINING WHETHER AN APPLICANT HAS STANDING?

24. The first point to make is that the question of whether an applicant under Section 18(1) of the Constitution has standing is a matter at the discretion of the Supreme Court. The discretion is to be exercised in accordance with the rules of the underlying law formulated in Somare and developed in subsequent cases, which can be summarised as follows:

1	The applicant will have standing if he or she has a sufficient interest in the matter, which will be demonstrated if the applicant:

•	has personal interests or rights that are directly affected by the subject matter of the application; or

•	is a citizen who has a genuine concern for the subject matter of the application;

•	is the holder of a public office, the functions of which relate to the subject matter of the application.

2	The application must raise significant (not trivial, vexatious, hypothetical or irrelevant) constitutional issues.

3	The applicant must not be a mere busybody meddling in other people's affairs and must not be engaged in litigation for some improper motive, eg as a tactic of delay.

4	The fact that there are other ways of having the constitutional issues determined by the Supreme Court does not mean that a person should be denied standing. The applicant does not have to demonstrate that he has approached persons whose personal interests are directly affected and encouraged them to bring an action to enforce their personal rights, eg under Section 23 or 57 of the Constitution. Nor does the applicant have to approach one of the authorities entitled to apply to the Supreme Court under Section 19 of the Constitution for a binding opinion on questions of constitutional interpretation or application, and ask that authority to make a special reference under Section 19(1). These are things that can be taken into account in considering whether the applicant has a genuine concern for the subject matter and whether as a matter of discretion the Court should declare that the applicant has standing, but they are not preconditions to be satisfied before an applicant is granted standing.

DO THE SOMARE RULES APPLY ONLY TO CHALLENGES TO THE EXERCISE OF LEGISLATIVE POWER BY THE PARLIAMENT?

25. No. The rules have a more extensive application, in two respects:

1	the rules also apply to the exercise of non-legislative powers by the Parliament;

2	the rules apply also where a person wishes to challenge the constitutionality of the actions of other bodies.

1	Somare rules extend to challenges to non-legislative decisions of Parliament

26. This point is borne out by Somare itself. The applicant, Mr Somare, had standing to challenge the constitutionality of not only a legislative act of the Parliament (enactment of the Defence Force (Presence Abroad) Act 1980) but also a non-legislative act (the decision under Section 205(2) of the Constitution to approve the commitment of troops to the operation). When the substantive application was heard, the Court's attention was focussed on the challenge to the constitutionality of the non-legislative act.

27. Another example of applicants being granted standing to challenge a non-legislative act of the Parliament is Re Election of Governor-General (No 1) (2003) SC721. The plaintiffs, Mr Geno and Mr Narokobi, were granted standing to challenge under Section 18(1) the constitutionality of the Parliament's decision to nominate a person for appointment as Governor-General.

28. These cases illustrate the point that, although the National Parliament is our pre-eminent legislative body, vested with the legislative power of the People under Section 100(1) (exercise of the legislative power) of the Constitution, it exercises other important, non-legislative functions. For example, the Parliament provides a check and balance on the exercise of power by the Executive. Woods J emphasised this multi-functional role of the Parliament in Supreme Court Reference No 3 of 1999; Special Reference under Section 19 of the Constitution by the Ombudsman Commission re Sitting Days of the National Parliament (1999) SC628:

The National Goals and Directive Principles notes in 2(9) that every citizen [is] to be able to participate, either directly or through a representative, in the consideration of any matter affecting his interests or the interests of the community. And under the Basic Social Obligations it is noted that all persons have the obligation to exercise the rights guaranteed or conferred by this Constitution, and to use the opportunities made available to them under it to participate fully in the government of the nation. It must be acknowledged that people in Papua New Guinea regularly meet together to discuss community problems and community action. The Parliament must be seen in that light as the meeting place of the people, through their representatives, to discuss their problems and plans and to, in the words of the above principles, to participate in the consideration of matters affecting the nation. So Parliament is not merely the law making body. It is the forum for discussions and questions and the overseeing of the government of the nation. People in the village society meet regularly, and so should the Parliament meet regularly. That must be seen to have been the intention of the framers of the Constitution. One does not have to look very far into the requirements and procedures of Government to find many reasons for regular meetings of the representatives of the people to discuss and oversee the workings of the Government. The various Parliamentary Committees such as the Public Accounts Committee and the Works Committee, to name two important ones, would have continuing functions and the obligation to report regularly back to the Parliament and thereby the People. [Emphasis added]

2	Somare rules apply to challenges to constitutionality of decisions other than Parliament's

29. The second way in which we consider Somare must be given a more extensive operation than might previously have been thought to be the case – and this is the issue that comes to the fore in the present case – is that the rules as to standing do not apply only to decisions and actions of the Parliament. They also apply to decisions and actions of the Executive, and decisions and actions of the Judiciary.

30. We find nothing in the judgments of the Judges in the majority in Somare to suggest that it was intended that the rules as to standing were to be confined to challenges to the decisions and actions of the Parliament. What we find, however, in the judgments of Kidu CJ, Kapi J and Miles J is the exposition of a number of fundamental principles that underpin the nature of constitutional democracy in Papua New Guinea. These principles drove their Honours to conclude that the rules as to standing must be open and liberal, and not steeped in the common law's insistence that a person be granted standing only if they could show a personal interest or stake in the outcome of the case. We have identified four such principles.

(a)	All power belongs to the People

31. The notion that in Papua New Guinea all power belongs to the People is, as emphasised by Kidu CJ in Somare, expressly stated in the Preamble to the Constitution, as follows:

WE, THE PEOPLE, do now establish this sovereign nation and declare ourselves, under the guiding hand of God, to be the Independent State of Papua New Guinea.

AND WE ASSERT, by virtue of that authority

•	that all power belongs to the people—acting through their duly elected representatives

(a)	The Rule of Law prevails

32. The Constitution, which is the Supreme Law, entrenches the Rule of Law. It follows that all power and all acts – legislative, executive or judicial – must be exercised and performed in accordance with the Constitution, and the Organic Laws. If they are not, they are unconstitutional: unlawful. This principle is stated in Section 11(1) (Constitution as supreme law) of the Constitution:

This Constitution and the Organic Laws are the Supreme Law of Papua New Guinea, and, subject to Section 10 (construction of written laws) all acts (whether legislative, executive or judicial) that are inconsistent with them are, to the extent of the inconsistency, invalid and ineffective.
 
(b)	The Constitutional Laws are self-executing

33. Our Constitutional Laws are not simply statements of general principle. They impose and confer real and enforceable powers, functions, duties and responsibilities, which exist by operation of the Constitution, without the need for supporting, machinery or procedural laws to bring them into effect. This principle is reinforced by a bundle of enforcement provisions, especially Sections 11(2), 22, 23 and 57:

34. Section 11(2) (Constitution as supreme law) states:

The provisions of this Constitution and of the Organic Laws are self-executing to the fullest extent that their respective natures and subject-matters permit.

35. Section 22 (enforcement of the Constitution) states:

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.

36. Section 23 (sanctions) states:

(1)	Where any provision of a Constitutional Law prohibits or restricts an act, or imposes a duty, then unless a Constitutional Law or an Act of the Parliament provides for the enforcement of that provision the National Court may—

(a)	impose a sentence of imprisonment for a period not exceeding 10 years or a fine not exceeding K10,000.00; or

(b)	in the absence of any other equally effective remedy under the laws of Papua New Guinea, order the making of compensation by a person (including a governmental body) who is in default,

or both, for a breach of the prohibition, restriction or duty, and may make such further order in the circumstances as it thinks proper.

(2)	Where a provision of a Constitutional Law prohibits or restricts an act or imposes a duty, the National Court may, if it thinks it proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty, and Subsection (1) applies to a failure to comply with the order as if it were a breach of a provision of this Constitution.

(3)	Where the National Court considers it proper to do so, it may include in an order under Subsection (2) an anticipatory order under Subsection (1).

37. Section 57(1) (enforcement of guaranteed rights and freedoms) states:

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.

(d)	The People have the right to come to Court

38. As all power belongs to, and is to be exercised on behalf of the People, the People have the right to come to the Supreme Court and complain, and to ask the Court to enforce the Constitutional Laws.

39. When the Supreme Court hears and determines a complaint that a certain body has exercised its power contrary to the Constitutional Laws, it is exercising the judicial power of the People, which is conferred by Section 158(1) (exercise of the judicial power) of the Constitution, which states:

Subject to this Constitution, the judicial authority of the People is vested in the National Judicial System.

APPLYING THE SOMARE RULES TO THIS CASE

40. We now address the question of whether, according to the Somare rules, this Court should exercise its discretion in favour of the applicant, Mr Namah, and determine that he has standing to make the application under Section 18(1) of the Constitution.

1 	Sufficient interest?

41. The applicant is a citizen who has, in our assessment, a genuine concern for the subject matter of the application, the constitutionality of arrangements, including memoranda of understanding, between the governments of Australia and Papua New Guinea as to the transfer of persons seeking asylum in Australia, from Australia to Papua New Guinea, for processing.

42. He has expressed the view that those arrangements are unconstitutional as they have resulted in transferees being detained for long periods without authority of a court and otherwise contrary to their rights to personal liberty under Section 42 (liberty of the person) of the Constitution. He has attempted to have these issues addressed in two earlier court proceedings, in the National Court (Belden Norman Namah MP v Rimbink Pato MP (2013) N4990) and in the Supreme Court (Belden Norman Namah MP v Rimbink Pato MP (2013) SC1241). He therefore has a sufficient interest in the subject matter of the application.

2	Significant constitutional issues?

43. We apprehend, from the terms of the application filed on 1 August 2013, amended on 25 September 2013, that the applicant wishes to argue that the arrangements between Papua New Guinea and Australia are unconstitutional. The argument evidently is that those arrangements have resulted in many people seeking asylum in Australia being transferred to and then detained in Papua New Guinea against their will, in circumstances that contravene Section 42 (right to personal liberty) of the Constitution.

44. Section 42 is one of the human rights provisions of the Constitution. It confers the right of personal liberty on all persons in Papua New Guinea (citizen or non-citizen) but provides that a person can be deprived of that right in certain circumstances. Section 42(1) states:

No person shall be deprived of his personal liberty except—

(a)	in consequence of his unfitness to plead to a criminal charge; or

(b)	in the execution of the sentence or order of a court in respect of an offence of which he has been found guilty, or in the execution of the order of a court of record punishing him for contempt of itself or another court or tribunal; or

(c)	by reason of his failure to comply with the order of a court made to secure the fulfilment of an obligation (other than a contractual obligation) imposed upon him by law; or

(d)	upon reasonable suspicion of his having committed, or being about to commit, an offence; or

(e)	for the purpose of bringing him before a court in execution of the order of a court; or

(f)	for the purpose of preventing the introduction or spread of a disease or suspected disease, whether of humans, animals or plants, or for normal purposes of quarantine; or

(g)	for the purpose of preventing the unlawful entry of a person into Papua New Guinea, or for the purpose of effecting the expulsion, extradition or other lawful removal of a person from Papua New Guinea, or the taking of proceedings for any of those purposes; or

(h)	in the case of a person who is, or is reasonably suspected of being of unsound mind, or addicted to drugs or alcohol, or a vagrant, for the purposes of—

(i)	his care or treatment or the protection of the community, under an order of a court; or

(ii)	taking prompt legal proceedings to obtain an order of a court of a type referred to in Subparagraph (i);

(i)	in the case of a person who has not attained the age of 18 years, for the purpose of his education or welfare under the order of a court or with the consent of his guardian.

45. The argument apparently is that the transferees have been deprived of their right to personal liberty – their movement has not been merely restricted – but not in any of the circumstances permitted by Sections 42(1)(a) to (i).

46. The only one of those circumstances that can arguably come close to describing the circumstances in which the transferees are being detained is Section 42(1)(g): they have been deprived of their personal liberty for the purpose of preventing the unlawful entry of persons into Papua New Guinea, or for the purpose of effecting the expulsion, extradition or other lawful removal of persons from Papua New Guinea, or the taking of proceedings for any of those purposes. The applicant apparently wants to argue that the transferees have not been deprived of their personal liberty for the purpose of preventing anyone's unlawful entry into Papua New Guinea. The argument is that they had no say in their coming to Papua New Guinea. They have been forced here.

47. The argument therefore appears to be that the detention of the transferees is inherently unconstitutional, and that it was beyond the constitutional power of the National Government to enter into an arrangement with another country that created that situation.

48. A related argument that the applicant apparently wants to make concerns the circumstances in which the transferees are being detained. This argument is based on Section 42(2) of the Constitution. In Belden Norman Namah MP v Rimbink Pato MP (2013) N4990 Cannings J explained that a person who is detained is entitled to the protection of Section 42(2) of the Constitution, which states:

A person who is arrested or detained—

(a)	shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and

(b)	shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and

(c)	shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained,

and shall be informed immediately on his arrest or detention of his rights under this subsection.
 
49. It was pointed out that any person who is detained in Papua New Guinea acquires five distinct rights (The State v Linus Rebo Dakoa (2009) N3586). He shall be:

•	informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and

•	permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend; and

•	permitted whenever practicable to communicate without delay and in private with a lawyer of his choice; and

•	given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained; and

•	informed immediately on his arrest or detention of his rights under Section 42(2).

50. It would seem to be open to the applicant to present evidence in relation to whether those Section 42(2) rights are being administered to the transferees and invite the Supreme Court to find that those rights were not being administered, and then submit that such findings of fact should be taken into account when determining the constitutionality of the arrangements between Papua New Guinea and Australia.

51. The prospect of such arguments being raised at the hearing of the application means that there are indeed significant and legitimate constitutional issues raised by the application. This is something that supports the exercise of discretion, as to the issue of standing, in favour of the applicant.

3	Is the applicant a busybody?

52. No, the applicant cannot be labelled a busybody. He is not someone meddling in other people's affairs that should be of no concern to him. He is the Leader of the Opposition, an office which is specifically recognised in the Constitution (Sections 26(1)(b) (application of Division 2), 176(4) (establishment of offices), 190(2)(c) (establishment of the Commission), 216A(2)(c) (the Salaries and Remuneration Commission) and 217(2)(c) (the Ombudsman Commission). It is a legitimate role of the Leader of the Opposition to hold the government of the day to account for its actions and decisions. This includes, as Somare shows, challenging the constitutionality of government decisions in the Supreme Court.

53. We can detect no improper motive on the part of the applicant. It might be said that he only wants to run this case for political reasons: to show that the government of the day is incompetent. It has entered into an unconstitutional arrangement with another country that has seen the human rights of persons in Papua New Guinea routinely abused. This is not necessarily an improper motive. Politics is an integral part of parliamentary democracy, which is the system of Government that the People of Papua New Guinea have entrenched in their Constitution.

54. That the applicant is not a busybody and is not acting for any improper motive are factors favouring the conclusion that he has standing.

4 	Other ways of determining the issues?

55. Mr Molloy for the respondents submitted that the Constitution provides three other ways in which the constitutional issues that the applicant wants to raise could be more appropriately determined:

•	a special reference under Section 19;
•	a complaint of unlawful or unreasonable detention under Section 42(5);
•	enforcement of human rights under Section 57.

Section 19

56. Section 19 (special references to the Supreme Court) states:

(1)	Subject to Subsection (4), the Supreme Court shall, on application by an authority referred to in Subsection (3), give its opinion on any question relating to the interpretation or application of any provision of a Constitutional Law, including (but without limiting the generality of that expression) any question as to the validity of a law or proposed law.

(2)	An opinion given under Subsection (1) has the same binding effect as any other decision of the Supreme Court.

(3)	The following authorities only are entitled to make application under Subsection (1):—

(a)	the Parliament; and

(b)	the Head of State, acting with, and in accordance with, the advice of the National Executive Council; and

(c)	the Law Officers of Papua New Guinea; and

(d)	the Law Reform Commission; and

(e)	the Ombudsman Commission; and

(ea)	a Provincial Assembly or a Local-level Government; and

(eb)	a provincial executive; and

(ec)	a body established by a Constitutional Law or an Act of the Parliament specifically for the settlement of disputes between the National Government and Provincial Governments or Local-level Governments, or between Provincial Governments, or between Provincial Governments and Local-level Governments, or Local-level Governments; and

(f)	the Speaker, in accordance with Section 137(3) (Acts of Indemnity).

(4)	Subject to any Act of the Parliament, the Rules of Court of the Supreme Court may make provision in respect of matters relating to the jurisdiction of the Supreme Court under this section, and in particular as to—

(a)	the form and contents of questions to be decided by the Court; and

(b)	the provision of counsel adequate to enable full argument before the Court of any question; and

(c)	cases and circumstances in which the Court may decline to give an opinion.

(5)	In this section, "proposed law" means a law that has been formally placed before the relevant law-making body.

57. We agree that it would appear to be open to any of the authorities referred to in Section 19(3) to make a special reference to the Supreme Court under Section 19(1) of the questions of constitutional interpretation and application that the applicant wants to raise.

58. It is perhaps surprising that two constitutional offices that should feel a great responsibility for protection and enforcement of human rights in Papua New Guinea – the Public Solicitor and the Ombudsman Commission – appear to have shown no interest in these issues. The Public Solicitor is a Law Officer (Constitution, Section 156(1)(c) (the law officers)) and therefore entitled under Section 19(3)(c) to make an application under Section 19(1); but frankly it is difficult to remember the last time that the Public Solicitor exercised this important power. The Ombudsman Commission is expressly referred to in Section 19(3)(e). It has an impressive record of making special references on a wide range of constitutional issues under Section 19(1). But the issues raised in the present case, as significant as they are, do not appear to have attracted the Commission's attention.

59. We acknowledge, as pointed out by Mr Molloy, that there is no evidence that the applicant has requested the Public Solicitor or the Ombudsman Commission or any of the other authorities in Section 19(3) to exercise their power under Section 19(1). We infer from the absence of evidence that no such requests have been made. We agree that the facts of the present case are distinguishable from those in Somare, where the applicant requested the Ombudsman Commission to exercise its power under Section 19(1) but the Commission declined to do so. However, the fact that the present applicant has not made a similar request is not something that goes against him. It is not a precondition to the exercise of discretion in his favour.

Section 42(5)

60. Section 42(5) (liberty of the person) states:

Where complaint is made to the National Court or a Judge that a person is unlawfully or unreasonably detained—

(a)	the National Court or a Judge shall inquire into the complaint and order the person concerned to be brought before it or him; and

(b)	unless the Court or Judge is satisfied that the detention is lawful, and in the case of a person being detained on remand pending his trial does not constitute an unreasonable detention having regard, in particular, to its length, the Court or a Judge shall order his release either unconditionally or subject to such conditions as the Court or Judge thinks fit.

61. We acknowledge as pointed out by Mr Molloy that it would be open to any of the transferees who consider that they are being unlawfully or unreasonably detained to complain to a Judge, and that if such a complaint were made the Judge would be obliged to inquire into the complaint and undertake the other tasks set out in Section 42(5). There are numerous instances of the National Court hearing, inquiring into and determining complaints of unlawful or unreasonable detention, including Re Complaint of Jacob Hendrich Prai and Otto Ondowame [1979] PNGLR 42, The State v Peter Kakam Borarae [1984] PNGLR 99, Application by Tom Ireeuw [1985] PNGLR 430, Re Moki Nikints [1988-89] PNGLR 164, Re Ricky Yanepa [1988-89] PNGLR 166, Re Kopa Kaipia (1989) N709, Re Yamson Vamble (1989) N743, Re Theresa Maip [1991] PNGLR 80, Re Wagi Non [1991] PNGLR 84, Re Kaka Ruk [1991] PNGLR 105, Re Application by Benetius Gehasa (2005) N2817, Re Conditions of Detention at Bialla Police Lock-Up (2006) N3022, Re Complaint of Rosa Jack (2006) N4153, Jonathan Paru v The State (2012) N4572 and Complaint by Michael Tambeng (2013) N4959.

62. We agree that this would be a good way of getting the human rights aspects of the constitutional issues that the applicant wants to raise brought out into the open and determined by a Court. But again, as in the case of Section 19, the availability of this procedure is not a bar to the applicant being granted standing to raise the issues himself under Section 18(1).

Section 57

63. Section 57 (special references to the Supreme Court) states:

(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.

64. We agree that it would be open to any of the transferees to make an application under Section 57(1), in the Supreme Court or the National Court, for enforcement of their rights under Section 42 of the Constitution.

65. The Human Rights Rules 2010 were made by the Judges, as part of the National Court Rules, to make such applications easy to make. It is as simple as filling out a form (see Rule 7 (commencement of proceedings by a party). The Human Rights Rules 2010 also clarify that a range of individuals and organisations will have standing to commence or appear in human rights proceedings. Rule 6 (standing to bring or appear in proceedings) states:

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.

66. As easy as the Human Rights Rules make it to commence Section 57 proceedings, we take judicial notice of the fact that none have been commenced, either by the transferees presently being accommodated at the regional processing centre in Manus or by any other person or body on their behalf. We query whether the transferees know that these rights are available to them. Perhaps they do not. Perhaps refugee advocacy groups or international organisations such as Amnesty International or Human Rights Watch, which might be expected to take an interest in the alleged abuse of human rights of asylum seekers, are not aware of the prospect of their being granted standing to commence proceedings in the National Court on behalf of the transferees.

67. Whatever the case, we make the same comment in relation to the availability of Section 57 proceedings, made in relation to the availability of the procedures under Sections 19 and 42(5): the fact that the procedure is available and that the applicant has not requested that it be invoked does not mean that he should be refused standing to make an application under Section 18(1) of the Constitution. 

Conclusion as to application of Somare rules

68. Applying the four Somare rules to the facts of this case shows that:

1	the applicant has a sufficient interest as he is a citizen who has a genuine concern for the subject matter of the application;

2	he wishes to raise significant constitutional issues;

3	he is not a mere busybody and has no improper motive;

4	though there are at least three other ways of having the constitutional, especially human rights, issues determined by the Courts, that does not mean that he should be refused standing.

Therefore, subject to our determination of the grounds of objection, the applicant should be granted standing.

DETERMINATION OF GROUNDS OF OBJECTION

69. We now determine the specific grounds on which the respondents oppose the applicant's request. We have addressed most of them already but we think it appropriate to formally determine them.

1	The Somare rules only apply in respect of a challenge to the exercise of legislative power by the Parliament.

70. We reject this proposition. As we explained earlier, the Somare rules were not formulated to deal only with challenges to the exercise of legislative power by the Parliament. The rules are to be applied when determining the question of a person's standing to make an application under Section 18(1) of the Constitution irrespective of which arm of government is involved and what sort of power has been exercised. Here, the applicant wishes to invoke Section 18(1) to challenge the exercise of executive power by the Executive arm of Government. The Somare rules apply.

2	There is no evidence that the applicant has approached any person or authority that would have standing to seek the sort of relief that he seeks, before resorting to this action.

71. This is correct. But there was no necessity for the applicant to approach any person or authority that would have had standing. That is the essence of what we have described as the fourth of the Somare rules.

3	The applicant is not asserting that any of his personal rights or freedoms are infringed by the acts that he seeks to challenge.

72. This is correct. But it is not necessary for the applicant to assert infringement of any of his personal rights or freedoms. He must demonstrate a sufficient interest in the subject matter, and he has done that.

4	Procedures exist in the Constitution for enforcement of Basic Rights, including those in Section 42, by persons who claim that their rights have been infringed.

73. This is correct. Two different procedures exist in the Constitution that could be easily invoked by the transferees, to enforce their human rights, including those rights in Section 42 of the Constitution: they could make a complaint to the National Court under Section 42(5) and/or file a human rights enforcement application under Section 57.

74. The fact that those procedures exist and that they have not been invoked by or on behalf of any of the transferees does not, according to the fourth of the Somare rules, mean that the applicant's request should be refused.

5	There are factual issues to be determined, which are better dealt with by evidence from persons who claim that their rights are contravened.

75. We agree that it is likely that there will be factual issues that will need to be determined. Order 3, Rule 3 of the Supreme Court Rules 2012 provides for a Judge to take evidence and find facts for the purposes of the hearing of any proceedings within the original jurisdiction of the Supreme Court. This procedure has been invoked in two recent cases, Application by Francis Gem (2010) SC 1065 and Special Reference pursuant to Constitution, Section 19; Reference by the East Sepik Provincial Executive (2011) SC1133. The procedure is simple and straightforward. The likelihood that factual issues will need to be determined has little bearing on whether the applicant has standing.

Conclusion as to grounds of opposition

76. None of them is a good reason to refuse standing. None of them persuades us that the result of application of the four Somare rules should be any other than that the applicant has standing.

CONCLUSION 

77. The applicant has standing and we will grant his request for a declaration to that effect. As the application has been strongly opposed, costs will follow the event.

ORDER 

(1)	The applicant's request is granted.

(2)	It is declared that the applicant has standing to make the application.

(3)	The respondents shall pay the costs of and incidental to the hearing of the request to the applicant, on a party-party basis, which shall, if not agreed, be taxed.

Judgment accordingly.
_______________________________________
Henaos Lawyers: Lawyers for the Applicant 
Kuman Lawyers: Lawyers for the Respondents