SC1313
PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCA NO 177 OF 2013

APPLICATION PURSUANT TO CONSTITUTION, SECTION 18(1)

APPLICATION BY ILA GENO

Waigani: Salika DCJ, Sakora J,
Cannings J, Hartshorn J, Poole J

2014: 24, 28 February

CONSTITUTIONAL LAW – practice and procedure – application under Constitution, Section 18(1) (original interpretative jurisdiction of the Supreme Court) – declaration sought as to interpretation and application of provisions of the Constitution regarding motions of no confidence in the Prime Minister: Section 145 (motions of no confidence) – question of locus standi: whether applicant has standing to make application.

The applicant filed an application in the Supreme Court under Section 18(1) of the Constitution seeking declarations as to the constitutionality of two amendments to the Constitution regarding Section 145 (motions of no confidence), which deals with the period within which a motion of no confidence may not be moved in the Parliament against the Prime Minister. The first amendment was made in 1991 by Constitutional Amendment No 14. It increased the period within which a motion of no confidence may not be moved, from six months after the date of appointment of the Prime Minister, to 18 months. The second amendment was made in 2013 by Constitutional Amendment No 36. It increased the period within which a motion of no confidence may not be moved, from 18 months to 30 months. He proposed to argue that both amendments are unconstitutional for a number of reasons, including that they are inconsistent with a number of other provisions of the Constitution which entrench the principle of responsible government and the principle of separation of powers. 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 facts, amongst others, that he is a citizen, who had on a previous occasion been declared by the Supreme Court to have standing to bring proceedings under Section 18(1) of the Constitution, and therefore he has a sufficient interest in the matter.

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 (Namah v Pato (2014) SC1304).

(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)	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 is at least one other way of having the constitutional issues determined by the Supreme Court (a special reference under Section 19 of the Constitution) it is relevant that the applicant has approached a number of authorities entitled by Section 19(3) to make an application under Section 19(1) and these authorities have not demonstrated any interest in making such an application.

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

Cases cited

The following cases are cited in the judgment:

Belden Norman Namah MP v Rimbink Pato MP, National Executive Council & The State (2014) SC1304
New Britain Oil Palm Ltd v Vitus Sukuramu (2008) SC946
Re Election of Governor-General (No 1) (2003) SC721
Re Petition of MT Somare [1981] PNGLR 265
Special Reference by Fly River Provincial Executive, re OLIPAC (2010) SC1057
Special Reference by Morobe Provincial Executive (2010) SC1089
Special Reference pursuant to Constitution, Section 19; Reference by the East Sepik Provincial Executive (2011) SC1133
Supreme Court Reference No 1 of 1992, Special Reference by the Ombudsman Commission [1992] PNGLR 73
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
Vitus Sukuramu v New Britain Oil Palm Ltd (2007) N3124

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 Yalo, for the applicant

28th February, 2014

1. BY THE COURT: Ila Geno 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 3 December 2013. He needs a declaration as to his standing before he can have his application heard. The notion of 'standing' or locus standi refers to the legally recognisable right or capacity of a person to commence proceedings.

3. This Court on 9 December 2013 directed that the application be served on the Prime Minister Hon Peter O'Neill MP, the Speaker of the National Parliament, Hon Theo Zurenuoc MP and the Chairman of the Constitutional and Law Reform Commission, Hon Benjamin Poponawa MP. That direction was complied with by the applicant but none of the recipients has filed an appearance under Order 11, Rule 2 of the Supreme Court Rules 2012. No other person has indicated their desire to be heard on the question of whether the applicant should be declared to have standing.

4. No person has therefore objected to the applicant being declared to have standing. This does not, however, mean that the applicant is entitled to be granted standing as he still needs to satisfy the Court that his request should be acceded to.

THE APPLICATION

5. The applicant seeks declarations as to the constitutionality of two amendments to the Constitution regarding Section 145 (motions of no confidence), which deals with the period within which a motion of no confidence may not be moved in the Parliament against the Prime Minister.

6. The first amendment was made in 1991 by Constitutional Amendment No 14; it increased the period within which a motion of no confidence may not be moved, from six months after the date of appointment of the Prime Minister, to 18 months. The second amendment was made in 2013 by Constitutional Amendment No 36; it increased the period within which a motion of no confidence may not be moved, from 18 months to 30 months.

7. Section 145 now reads:

(1) For the purposes of Sections 142 (the Prime Minister) and 144 (other Ministers), a motion of no confidence is a motion—

(a) that is expressed to be a motion of no confidence in the Prime Minister, the Ministry or a Minister, as the case may be; and

(b) of which not less than one week's notice, signed by a number of members of the Parliament being not less than one-tenth of the total number of seats in the Parliament, has been given in accordance with the Standing Orders of the Parliament.

(2) A motion of no confidence in the Prime Minister or the Ministry—

(a) moved during the first four years of the life of Parliament shall not be allowed unless it nominates the next Prime Minister; and

(b) moved within 12 months before the fifth anniversary of the date fixed for the return of the writs at the previous general election 

shall not be allowed if it nominates the next Prime Minister.

(3) A motion of no confidence in the Prime Minister or the Ministry moved in accordance with Subsection (2)(a) may not be amended in respect of the name of the person nominated as the next Prime Minister except by substituting the name of some other person.

(4) A motion of no confidence in the Prime Minister or in the Ministry may not be moved during the period of thirty months commencing on the date of the appointment of the Prime Minister. [Underlining added.]

PROCEDURE

8. 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".

9. 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

10. The applicant formally bases his request on two facts set out in the application:

(a)	That the applicant is a citizen of Papua New Guinea;

(b)	The Supreme Court has on a previous occasion in Ombudsman Commission v National Parliament (2003) SC721 (21 November 2003) declared that the applicant has standing to bring proceedings under Constitution, Section 18(1).

11. During the course of making the request, the applicant's counsel, Mr Yalo, put forward a number of other bases on which the applicant claimed to have standing, including that the applicant has a genuine interest in the subject matter in the light of his long period of holding public office, which is reflected by his formation of a political party the aim of which is to advance constitutional democracy in Papua New Guinea and his regular public comments on issues of constitutional significance.

METHODOLOGY

12. It was recently affirmed by the Supreme Court in Namah v Pato (2014) SC1304 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, to be exercised in accordance with the rules of the underlying law originally formulated in Re Petition of MT Somare [1981] PNGLR 265 and developed in a number of other subsequent cases.

THE SUPREME COURT DECISION IN SOMARE

13. 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 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.

14. 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 fell within the exclusive jurisdiction of the Supreme Court under Section 18(1) of the Constitution. As to the 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.

15. It was observed in Namah v Pato that the rules of the underlying law formulated in Somare 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; or

•	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.

16. Mr Yalo submitted that we should take the opportunity presented by the unusual circumstances of this case to invoke Schedule 2.3 (development of an underlying law for Papua New Guinea) of the Constitution and formulate two new rules of the underlying law, additional to the Somare rules. He posited them in the following terms:

•	a citizen who once occupied public office and performed public functions and who in his post-public service life continues to promote or protect the principles, rules and values that relate to the office(s) he previously held should have "automatic standing" to bring public interest actions relating to the interpretation or application of Constitutional Laws;

•	a citizen who is a leader of a registered political party whose constitution and policies relate to the protection and preservation of democratic values, ideals and principles entrenched in the Constitution should have "automatic standing" to bring public interest actions relating to the interpretation or application of Constitutional Laws.

17. We are not persuaded that such additional rules are necessary or desirable. This Court (consisting of five Judges, four of whom are on the present bench) handed down its decision in Namah v Pato (2014) SC1304 only one month ago, on 29 January 2014. It was declared that the applicant, the Leader of the Opposition, had standing to challenge under Section 18(1) of the Constitution 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.

18. The Leader of the Opposition's request for a declaration as to his standing was decided, after looking at the history and background of the Somare rules, and how those rules had been fine-tuned, developed and applied in numerous cases over a period of 32 years. The Court concluded that Somare was a seminal decision of the Supreme Court, eminently sound in principle, which has stood the test of time and 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. Why would we want to amend the Somare rules, or add two new ones, only a month later?

19. It would unnecessarily complicate the determination of requests for declarations as to standing to introduce the concept of "automatic standing" in certain cases. It would only invite argument as to whether an applicant has "automatic" standing, and if not, whether he can still be granted standing at the discretion of the Court.

20. The subject matter of the proposed additional rules – where the applicant is a person who has previously occupied public office or the leader of a political party that has "constitutional" aims – are relevant considerations to take into account when applying the existing Somare rules. They will be considered when we determine the current request. But we do not need such detailed rules to deal with this particular case.

21. The Somare rules are of general application and are sufficiently flexible to deal with the current request. We cannot foresee any difficulty in applying them to different scenarios, for example the applicant might be a non-citizen or a corporation (a governmental body or a private company) or a prisoner.

22. Finally we note that the applicant is relying on Schedule 2.3 of the Constitution. However, the underlying law is no longer to be developed in accordance with Schedule 2.3. The Underlying Law Act 2000 was made in accordance with Section 20(1) of the Constitution. It is that law – not Schedule 2.3 – that must be invoked if consideration is to be given to formulating new rules of the underlying law (New Britain Oil Palm Ltd v Vitus Sukuramu (2008) SC946, Vitus Sukuramu v New Britain Oil Palm Ltd (2007) N3124).

23. For all those reasons we decline to formulate any additional rules of the underlying law. The Somare rules remain the relevant rules to be applied.

APPLYING THE SOMARE RULES TO THIS CASE

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

1 DOES THE APPLICANT HAVE A SUFFICIENT INTEREST?

25. The applicant is a citizen who has, in our assessment, a genuine concern for the subject matter of the application. The existence of those two conditions gives him a sufficient interest.

26. The fact that he is no longer the holder of public office is inconsequential, as is the fact that this may be the first time in which a person who is not a public office-holder has been declared to have a sufficient interest in an application of this nature. If an applicant holds public office then that fact will be relevant – and may enhance the prospect of his being declared to have standing – if the functions of his office relate to the subject matter of the application. But, we reiterate, it is not necessary for an applicant to be a public office-holder, provided that he satisfies two criteria: he is a citizen and he has a genuine concern for the subject matter of the application.

27. We are satisfied as to the genuineness of the applicant's concern, as there is evidence in the form of the applicant's supporting affidavit of the following matters:

•	He is a prominent and well known person in the community, having been recently conferred the title "Grand Chief".

•	He has a long period of public service, extending to about 50 years, including holding four leadership offices in the period from 1990 to his retirement in 2008: Commissioner of Police, Chairman of the Public Services Commission, Ombudsman and Chief Ombudsman, three of which gave him status as a constitutional office-holder.

•	In the period he was a member of the Ombudsman Commission (from 1998 to 2008) he was at the forefront of a team of citizens addressing leadership and governance and other constitutional issues.

•	He was on a previous occasion acknowledged by the Supreme Court as having standing in a constitutional case, which concerned the appointment of the Governor-General: Re Election of Governor-General (No 1) (2003) SC721.

•	In September 2010 he co-founded a political party called Papua New Guinea Constitutional Democratic Party, which has been registered, its aims and objectives including preservation and promotion of the ideals, values and principles of the Constitution and promotion of strong leadership and good governance as enshrined in the Constitution.

•	On 4 February 2013, the day before the Parliament made Constitutional Amendment No 34, he made public comments, which were reported in the media, expressing concern as to the constitutionality of the Amendment and other constitutional issues. He has been known to publicly air his views on constitutional issues on a number of occasions.

28. The first requirement for having standing – having a sufficient interest in the subject matter of the application under Section 18(1) of the Constitution – is satisfied.

2 ARE SIGNIFICANT CONSTITUTIONAL ISSUES INVOLVED?

29. We apprehend, from the terms of the application filed on 3 December 2013 and the submissions made before us, that the applicant proposes to argue that both Constitutional Amendment No 14 and Constitutional Amendment No 36 are unconstitutional. He proposes to argue these amendments, particularly No 36, should be struck down as they:

•	are inconsistent with a number of other provisions of the Constitution (especially Sections 141(b) and (c)) which entrench the principle of responsible government and the principle of separation of powers;

•	allow the Executive arm of the National Government to dominate the National Parliament;

•	diminish the authority of the Parliament and enable the political interests of members of Parliament who are in government to be advanced;

•	restrict for long periods the right of members of the Parliament under Section 50 of the Constitution to be eligible to hold office as Prime Minister;

•	create inequality amongst the members of Parliament, contrary to Section 55 of the Constitution;

•	restrict the rights of members of Parliament under Section 111 of the Constitution to introduce a petition, question, bill, resolution or motion;

•	fail to satisfy the manner and form requirement of Section 38 of the Constitution;

•	pave the way for minimal or no accountability by the Executive to the Parliament.

30. None of these arguments or the issues that they give rise to can be objectively regarded as trivial, vexatious, hypothetical or irrelevant. The fundamental proposition that the applicant wishes to put to the Court is that the system of democratic, constitutional government that Papua New Guinea has, is built on the foundation of responsible government: the Executive arm of government is responsible and accountable to the Parliament. To ensure that that system operates effectively the Prime Minister and the Government of the day must be responsible to the Parliament (Section 19 of the Constitution by the Ombudsman Commission re Sitting Days of the National Parliament (1999) SC628).

31. If, however, the Prime Minister is immune from motions of no confidence for lengthy periods, the Government of the day is, according to the arguments the applicant wants to prosecute, also immune from review. Even a bad government will survive, according to the applicant's argument.

32. We note that many of the applicant's arguments raise the question of whether an amendment to the Constitution that is made by the Parliament in compliance with the manner and form procedural requirements of Subdivision III.2.B of the Constitution can actually be struck down on the ground of internal inconsistency. There are two decisions of the Supreme Court that show the difficulty in arguing the concept of internal inconsistency: Supreme Court Reference No 1 of 1992, Special Reference by the Ombudsman Commission [1992] PNGLR 73 and Special Reference by Fly River Provincial Executive, re OLIPAC (2010) SC1057. The spectre of there being such difficulties does not, however, detract from the significance of the constitutional issues. If anything, it adds to the significance of the issues.

33. Our assessment is that there are significant and legitimate constitutional issues raised by the application. The second requirement is satisfied.

3 IS THE APPLICANT A BUSYBODY?

34. 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 a citizen with a genuine concern for constitutional issues and the issues he wants raised are significant. He is not acting for any improper motive. The third requirement is satisfied.

4 ARE THERE OTHER WAYS OF DETERMINING THE ISSUES?

35. It is relevant to consider whether there are other ways of determining the issues, and if there are, whether the applicant has made any attempt to utilise those other ways of getting the constitutional issues determined.

36. In the present case, there is at least one other way, besides the hearing of an application under Section 18(1) of the Constitution, that the questions of constitutional interpretation and application that the applicant wishes to raise, could be addressed and determined by the Supreme Court: by one of the authorities prescribed by Section 19(3) of the Constitution, making a special reference to the Supreme Court under Section 19(1) of the Constitution.

37. 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.

38. An opinion given under Section 19 would be a binding and enforceable judicial determination (Special Reference by Morobe Provincial Executive (2010) SC1089, Special Reference pursuant to Constitution, Section 19; Reference by the East Sepik Provincial Executive (2011) SC1133).

39. There is evidence that the applicant has approached five different authorities, each of which would be entitled to make the constitutional issues that the applicant wishes to raise, the subject of a special reference under Section 19(1): the Ombudsman Commission, the Constitutional and Law Reform Commission, the Public Prosecutor, the Central Provincial Executive and the Central Provincial Assembly. Each of those authorities has expressed no interest in the issues.

40. This is disappointing but perhaps it is not surprising. It is a reflection of a certain degree of 'constitutional apathy' that has been developing for some time. The authorities that would be expected to take a great deal of interest in constitutional issues appear to be sleeping at the wheel. That this phenomenon is being observed by the Court and that the applicant appears willing and able to agitate these significant issues, are factors that support the exercise of the Court's discretion in his favour.

CONCLUSION

41. 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 is at least one other way of having the constitutional issues determined by the Court, the applicant has taken reasonable steps to have that procedure invoked, to no avail.

42. All four criteria that comprise the Somare rules support the exercise of discretion in the applicant's favour.

43. The applicant has standing and we will grant his request for a declaration to that effect. As no other party has yet been joined to these proceedings, he will bear his own costs.

ORDER 

(1)	The applicant's request is granted.

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

(3)	The applicant shall bear his own costs.

Judgment accordingly.
__________________________________________
Nemo Yalo Lawyers: Lawyers for the applicant