SC1561
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCC (OS) NO. 2 OF 2016

APPLICATION pursuant to Constitution Section 18(1)

APPLICATION by EDWARD MIKE JONDI in his capacity as GENERAL SECRETARY of the PNC PARTY

Waigani: Gavara-Nanu J, David J & Yagi, J
2016: 12th & 20th December

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 nomination of a Prime Minister in a motion of no confidence under Section 145(2)(a) of the Constitution (motions of no confidence) – question of locus standi: whether applicant has standing to make application.

Cases cited:
Application by Ila Geno (2014) SC1313
Eki Investments Limited v Era Dorina Limited; Era Dorina Limited v Eki Investments Limited (2006) N3176
Mekere Morauta v Ano Pala (2016) SC1529
Namah v Pato (2014) SC1304
Odata Ltd v Ambusa Copra Oil Mill Ltd (2001) N2106
Re Petition of MT Somare [1981] PNGLR 265

Facts:	
The applicant filed an application in the Supreme Court under Section 18(1) of the Constitution seeking declarations as to the constitutionality of a motion of no confidence in the Prime Minister. Four motions of no confidence in the Prime Minister were instituted; three were rejected by the Parliamentary Committee for various reasons and the fourth was dealt with by the Parliament and was defeated. In each of the motions of no confidence, the person nominated or proposed as the Prime Minister, in the event of a successful motion of no confidence, was not from the political party with the greatest number of elected members in Parliament. The applicant therefore seeks declarations that in circumstances where the person to be decided upon by the Parliament as the next Prime Minister in the event of a successful motion of no confidence that person should be appointed from within members of the registered political party with the greatest number of candidates declared elected in the last general election. 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 requests the Court to declare that he has standing on the basis that he is not only a citizen but also the General Secretary of the Peoples National Congress (PNC), the political party which commands the majority of the elected members of Parliament, and which was invited by the Governor General to form the government pursuant to Section 63 of the Organic Law on the Integrity of Political Parties and Candidates 2003. 

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 (Somare Rules).

2.	An applicant must demonstrate the following considerations under the Somare Rules:

(i)	has personal interests or rights that are directly affected by the subject matter of the application; or
(ii)	is a citizen who has a genuine concern for the subject matter of the application; or
(iii)	is the holder of a public office, the functions of which relate to the subject matter of the application.

3.	An official of a political party pursuing a reference under Section 18(1) of the Constitution must show that he or she is acting with the approval or endorsement of the political party.

4.	The special reference under Section 18(1) of the Constitution is not intended as an open license to any ordinary citizen.

Counsel:
E. Asigau, for the Applicant

RULING
20th December, 2016

1.	BY THE COURT:	The applicant, Edward Mike Jondi, is seeking a declaration that he has standing to make an application under Section 18(1) of the Constitution for the Supreme Court to interpret Sections 142, 143 and 145 of the Constitution and Section 63 of the Organic Law on the Integrity of Political Parties and Candidates 2003.

2.	He filed this application on 23 March 2016. In the application he claims that he has standing on the basis that he “is a prominent citizen of Papua New Guinea and the General Secretary of the PNC Party.” 

3.	In paragraph 3 of the application he requests the Supreme Court to declare that the proper interpretation or application of the relevant provisions of the Constitution and the Organic Law:

“(i)	require that the person nominated as the next Prime Minister in a motion of no confidence pursuant to Section 145(2)(a) of the Constitution be a member of the registered political party which has endorsed the greatest number of candidates declared in the last general election prior to the said motion.

(ii)	in the event of a vacancy occurring in the Office of the Prime Minister under section 142(5) of the Constitution following the passing of a vote of no confidence pursuant to section 145 of the Constitution, the person decided upon the Parliament to be Prime Minister, and accordingly the person appointed Prime Minister by the Head of State, be a member of the registered political party which has endorsed the greatest number of candidates declared elected in the last general election prior to the proposed appointment.”

4.	The facts which he relies upon to make his request are set out in paragraph 4 of the application. They are:

“4.1	On 3 November 2015, a Motion of No Confidence (the Motion) in the Prime Minister, the Honourable Peter O’Neill was delivered to the Chairman of the Parliamentary Committee on Private Business (“the Committee”).

4.2	On 4 November 2015, the Motion was deliberated on by the Committee and was rejected.

4.3	On 3 December 2015, the Leader of the Opposition, the Honourable Don Pomb Polye filed an Application pursuant to Constitution Section 18(1) challenging the decision of the Committee to reject the Motion.

4.4	The Application by the Leader of the Opposition is yet to be determined by the Supreme Court.”

5.	At the hearing before this Court no interested person or party appeared either to support or oppose the application by the applicant for standing despite clear evidence of these persons being served with the application. The names of the interested parties are specified in paragraph 6 of the application.

6.	The principles governing the grant of request by an applicant for standing was developed or formulated by the Supreme Court in Re Petition of MT Somare [1981] PNGLR 265 and has since been affirmed, adopted and applied in subsequent cases: see Namah v Pato (2014) SC1304 and Application by Ila Geno (2014) SC1313.

7.	In Application by Ila Geno, the full bench of the Supreme Court (Salika DCJ, Sakora J, Cannings J, Hartshorn J and Poole J) whilst endorsing the principles summarized them in this way at paragraph 15 of the judgment:

“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.”

8.	Applying the above principles we begin our deliberation in the following manner.

Other ways of determining the issue

9.	In relation to the question of whether there are ways other than Section 18(1) of the Constitution process that is available to the applicant we note that Section 19(1) of the Constitution maybe utilized but that process is restricted to certain constitutional office holders or institutions. This provision expressly recognizes, amongst others, the Parliament, the Head of State, the Law Officers of Papua New Guinea, the Law Reform Commission, the Ombudsman Commission and a Provincial Assembly as having standing to invoke the original jurisdiction of the Supreme Court in matters relating to interpretation and application of constitutional provisions. It does not specifically recognize an Executive Member of a registered political party. However, going by the principles in Application by Ila Geno, an Executive Member of a political party may pursue the matter by proxy through one of the authorities having automatic standing under the provision. In this case there is no evidence of any approach or consultation made by the applicant in seeking to have any of the authorities taking up on behalf of the applicant the constitutional issues raised by him in this proceeding. Neither has the applicant provided any explanation on this issue. Having said that, we are indeed surprised that the Attorney General, being a Law Officer, appears to have taken very little or no interest at all in this proceeding. Notwithstanding this, we note this is not a determinative consideration or pre-condition to be satisfied. However, we also note this factor may well affect the applicants standing in the ultimate as we consider other aspects of the requirement for standing.

Significant constitutional issues

10.	The next consideration is whether the applicant has raised significant constitutional issues in the proceeding. We have already referred to the issues raised. We have given consideration to the issues. In our view, the issues are prima facie arguable; however, we do not think it is appropriate for us, at this stage, to actually transcend into the arena in a substantive manner. 

Sufficient interest

11.	As regards to this factor we note that the applicant has produced evidence that he is a citizen and General Secretary of a political party. In our view, simply saying that one is holding an executive office in a political party is not sufficient because there are two legal personalities involved; the natural and the corporate personalities. In other words, the applicant is wearing two hats. He is firstly a natural person and secondly an executive or officer of an incorporated body. 

12.	The principles in company law govern and regulate this area of practice and law and the principles have been extensively discussed and clearly articulated by the National Court in a number of its decisions: see  Odata Ltd v Ambusa Copra Oil Mill Ltd (2001) N2106 and Eki Investments Limited v Era Dorina Limited; Era Dorina Limited v Eki Investments Limited (2006) N3176. 

13.	In this case there is no evidence as to whether PNC Party or Peoples National Congress Party as we understand is a body corporate under the law. There is no certificate of incorporation either from the Office of Registrar of Companies or the Office of the Registrar of Political Parties. We cannot merely assume things. 

14.	This is a serious consideration because the right to invoke the constitutional process under Section 18(1) of the Constitution is a special right available only to certain category of citizens. It cannot be misused and abused by any ordinary citizen. It has clearly been said by this Court in a line of authorities since the Re Petition of MT Somare case that it is not open to “busy bodies meddling in the affairs of other people”. It is therefore absolutely vital that an applicant must clearly demonstrate his or her capacity. It is insufficient to merely assert that he or she is an officer of a corporate or incorporated body. 

15.	Furthermore, assuming that PNC Party is a political body duly registered in accordance with the law (Organic Laws on Integrity of Political Parties and Candidates 2003) there is no evidence of its constitution before this Court. The scheme of arrangement under the Organic Laws on Integrity of Political Parties and Candidates 2003 is to ensure that a political party is registered with the Office of the Registrar of Political Parties. Under Section 29(3)(d)(i) of that Organic Law a political party is required to lodge a copy of its Constitution with the Office of the Registrar.  

16.	It is trite principle in corporate law that a body corporate is required to make decisions through a recognized body within its corporate structure and in most cases it is a Committee or a Board. An officer, be it a President, Chairman, Secretary, Treasurer or whosoever or howsoever maybe described, is a Committee or Board member of the body corporate and has no legal authority to make decisions independently on behalf of a body corporate. A body corporate functions and operates through a collective voice. In practice that process is known as a Committee or Board resolution. In this case there is no evidence of a resolution approved or endorsed by the PNC Party through its Party Executive or Committee or Board authorizing the applicant to initiate this proceeding.

17.	In a recent decision in Mekere Morauta v Ano Pala (2016) SC1529 this Court found that the applicant had no standing on the basis that he was pursuing the Constitutional Reference under Section 18(1) of the Constitution in his capacity as the Managing Director of a foreign company. He did not have any personal interest in the subject matter in the proceedings. He was pursuing the matter in the interest of the company. He was used by the foreign company to further their corporate interest. There was also no evidence of a company resolution expressly authorizing the applicant to pursue the natter on behalf of the company.

18.	In our respectful view, the principles developed by this Court in dealing with special references under Section 18(1) of the Constitution is not intended as an open license to any ordinary citizens. Each application must be assessed on its own merit and there must be sufficient evidence to demonstrate the seriousness of the issue. It must not be used by busy bodies for personal or ulterior motives. This Court must not allow its processes to be abused. To do so will open up flood gates to all manner of people under a pretext of being a “citizen”. The Court must be very careful in safeguarding its process.

19.	It is primarily for this reason we find that the applicant has failed to satisfy the requisite test in terms of his standing. In the circumstances we therefore refuse leave.

__________________________________________________________________
Pacific Legal Group Lawyers: Lawyer for the Applicant
Nil :   Lawyer for the Attorney General			
Nil:    Lawyer for the Speaker of the National Parliament		
Nil :   Lawyer for the Leader of the Opposition			
Nil :  Lawyer for the Prime Minister