SC2538

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCCA NO 3 OF 2023

APPLICATION PURSUANT TO CONSTITUTION, SECTION 18(1)

APPLICATION BY APEO FUATA SIONE
AND

HON. PILA NININGI, LLB, MP
ATTORNEY GENERAL

Waigani: Dingake, Miviri & Purdon-Sully JJ
2024: 27th February, 6th March

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 Sections 38, 39 and 50 of the Constitution – question of locus standi: whether applicant has standing to make application – application of rules formulated in Re Petition of MT Somare [1981] PNGLR 265.
Cases Cited
Re Petition of MT Somare [1981] PNGLR 265
Belden Norman Namah MP v Rimbink Pato MP, National Executive Council & The State (2014) SC1304 
In re Application by Ila Geno [2014] PGSC 2; SC1313
Supreme Court Reference No 1 of 1992, Special Reference by the Ombudsman Commission [1992] PNGLR 73
SC Ref No 2 of 1982, Re Organic Law on National Elections (Amendment Act, 1981 [1981] PNGLR 214) 
The State v NTN Pty Ltd [1992] PNGLR 1 
In the Matter of s 18(1) of the Constitution and the Honourable Bill Skate MP, Leader of the Opposition (2001) SC678
SC Ref No 2 of 2020, Re Sections 89(2) and 91(4)(f) of the Bougainville Constitution (2020) SC1952
Special Reference by Morobe Provincial Executive (2010) SC1089
Special Reference pursuant to Constitution, Section 19; Reference by the East Sepik Provincial Executive (2011) SC1133

Legislation
Constitution, ss18(1),19(1),19(2),19(3), 38, 39, 50 
Supreme Court Rules 2012, Order 4
Public Services (Management) Act 
Public Services (Management) (Amendment) Act 2020, s 11
Public Services (Management) (Amendment) Act 2021

Counsel
R Simbil, for the Applicant
Russel Uware & Ms. Gabrielle Dusava, for the Intervenor  

DECISION

6th March 2024

1.	BY THE COURT: The applicant, Apeo Fuata Sione, who is the Chairman of the Public Services Commission, seeks declarations under Section 18(1) of the Constitution that the proper interpretation of the application of sections 38, 39 and 50 of the Constitution would invalidate two amendments to the Public Services (Management) Act (the Principal Act), namely s 11 of Public Services (Management) (Amendment) Act 2020 (the first amendment) and the Public Services (Management) (Amendment) Act 2021 (the second amendment).

2.	Section 18(1) of the Constitution gives the Supreme Court 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

3.	Order 4 of the Supreme Court Rules 2012 however requires that before an application under Section 18(1) of the Constitution can be heard, the Court should declare that the applicant has standing, that is, that the applicant has the legally recognizable right or capacity to commence the proceedings. 

4.	The issue before the Court then is whether the applicant has standing pursuant to s 18(1) of the Constitution to bring this application.  At this stage of the proceedings, we are only dealing with the request as to standing.  We are not dealing with the merits of the substantive application under section 18(1) which will only be heard if the applicant’s request is granted.  

5.	The law in relation to such a request is well settled in this jurisdiction. The question of whether an applicant has standing under section 18(1) of the Constitution is a matter for the discretion of the Court to be exercised in accordance with the rules of the underlying law formulated in Re Petition of MT Somare [1981] PNGLR 265 (the Somare rules).

6.	The Somare rules as to standing may be described as follows:

a.	The applicant will have standing if he or she has a sufficient interest in the matter, which will be demonstrated if the applicant:
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.
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, e.g. 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. The applicant does not have to demonstrate that he has approached persons whose personal interests are directly affected and encourage them to bring an action to enforce their personal rights, e.g. 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.

7.	The applicant bases his request for standing on each of those four grounds, submitting that he has demonstrated a sufficient interest, raises a significant constitutional issue, is not a busy body or acting for an improper motive and that whilst the issues in the substantive proceeding could have been brought to the Court by way of a special Reference under s 19 of the Constitution, that circumstance should not dissuade the Court from exercising its discretion in his favour.  

8.	The Intervenor opposes the application.  No issue is taken with the competency of the applicant’s request, nor with the applicant not pursuing other avenues for determining the issue, however it is the contention of the Intervenor that the applicant has failed to meet the other tests in the Somare rules, in that he does not demonstrate a sufficient interest in the matter, does not raise a significant constitutional issue and fails the busybody test.

9.	We shall address each of the Somare rules in turn in determining whether this Court should in its discretion find that the applicant has standing to make an application under section 18(1) of the Constitution.
DOES THE APPLICANT HAVE A SUFFICIENT INTEREST?
10.	The applicant is a citizen and for reasons we shall shortly outline, has in our assessment demonstrated a genuine concern for the subject matter of the application.  

11.	While those two circumstances were conceded by Counsel for the Intervenor, Counsel was reluctant to make the further concession that they would give rise to the applicant demonstrating a sufficient interest.    We find that to be the case.  Such a finding makes it unnecessary to consider the other arguments advanced on behalf of the applicant and Intervenor as to whether the applicant, being a public officer holder, has functions that relate to the subject matter.  

12.	As promulgated in the Somare rules the applicant may demonstrate a sufficient interest in the matter in any one of the three circumstances outlined.  The use of the word ‘or’ as opposed to the word ‘and’ makes plain that the individual circumstances as particularized are exclusive, having been formulated in the alternative.

13.	In Re Application by Ila Geno [2014] PGSC 1; SC1313, the applicant Mr Gelo was a citizen, albeit not the holder of a public office.  A five (5) bench Supreme Court (Salika DCJ (as he then was), Sakora, Cannings, Hartshorn & Poole JJ) found at [26] that it was not necessary for an applicant to be a public officer holder provided that he satisfied two criteria, namely citizenship and a genuine concern for the subject matter of the application. The fact that Mr. Gelo no longer held public office at the time of his application was deemed inconsequential.

14.	With respect to the genuineness of the applicant’s concern, support can be found in the evidence in the applicant’s affidavit sworn 26 April 2023 and filed 28 April 2023 wherein he deposes to the following matters:

a.	He is Chairman of the Public Services Commission (PSC) having been appointed on 26 April 2020 for a period of five (5) years.  
b.	Prior to his appointment he was employed with the PSC for a combined total of twenty-five (25) years. 
c.	He is a member of the Electoral Commission Appointments Committee, Ombudsman Commission Appointments Committee and the Independent Commission Against Corruption Appointment Committee.
d.	He was awarded the Logohu Medal for service to the PSC in 2016.
e.	Since the PSC is responsible for the review of ‘personnel matters’ of officers of the National Public Service, the PSC was concerned that the passing of amendments was directly infringing the rights of thousands of citizen public servants.
f.	Having formed the view that the first amendment and second amendment were unconstitutional, that some 100,000 public servants (including teachers and health workers) were affected by it, and that the five (5) year prohibition period imposed by the second amendment had resulted in a shortage of medical professionals in the public health system, on 26 October 2022 he wrote to the Minister of the Public Service to ventilate his concerns and request that the NEC initiate a process to repeal the laws.
g.	He annexed to his affidavit media coverage relevant to the number of resignations from the public service to contest the national general elections in 2022 and further coverage highlighting the need for forty (40) doctors who unsuccessfully contested the elections to be re-employed by the public service.  

15.	Having on the evidence established that he is a citizen and in our view a genuineness of concern for the subject matter of the application, we find that the applicant meets the sufficient interest test and the first requirement for standing to be satisfied.

DOES THE APPLICATION RAISE SIGNIFICANT CONSTITUTIONAL ISSUES?
16.	It is the applicant’s case that significant constitutional issues arise on his application as follows:

a.	Both amendments to the Principal Act were enacted to regulate the special rights of citizen public servants under section 50(1) of the Constitution to stand for elective public office (see SC Ref No 2 of 1982, Re Organic Law on National Elections (Amendment Act, 1981 [1981] PNGLR 214) 
b.	Both amendments fail to comply with the formal and procedural requirements under sections 38(2) and 50(2) of the Constitution as decided in the cases of SC Ref No 2 of 1982, Re Organic Law on National Elections (Amendment) Act, 1981 (supra), SC Ref. No 1 of 1992 [1992] PNGLR 73, The State v NTN Pty Ltd [1992] PNGLR 1 and In the Matter of s 18(1) of the Constitution and the Honourable Bill Skate MP, Leader of the Opposition (2001) SC678
c.	The second amendment fails to comply with the substantive requirement of sections 38(2) and 50(2) of the Constitution in that it is not a law that is reasonably justifiable for the purpose of a democratic society that has a proper regard for the rights and dignity of mankind as decided in the cases of SC Ref No 2 of 1982, Re Organic Law on National Elections (Amendment Act) 1981) (supra), SC Ref, No 1 of 1992 (supra), The State v NTN Pty Ltd (supra) and In the Matter of s 18(1) of the Constitution and the Honourable Bill Skate MP, Leader of the Opposition (supra) and SC Ref No 2 of 2020, Re Sections 89(2) and 91(4)(f) of the Bougainville Constitution (2020) SC 1952. 

17.	In short, the proposition the applicant seeks to agitate before the Court if his request for standing is granted, is that by removing the automatic right of re-admission to the public service (the first amendment) and by imposing other conditions on public servants in order to contest elections and a prohibition of five years to re-enter the public service (the second amendment), the changes to the Principal Act are:

a.	a ‘regulation’ on the public servant’s right to stand for elective public office in breach of the Constitution; and 
b.	not a law that objectively could be described as ‘reasonably justifiable in a democratic society’ that would meet the constitutional test as authoritatively considered; and 
c.	is otherwise in breach of the formal and/or procedural requirements of relevant provisions of the Constitution.

18.	It is contended on behalf of the Intervenor that there are no significant constitutional issues which warrant the hearing of the application, that the amendments to the Principal Act are not unconstitutional and invalid, that sections 38, 39 and 50 of the Constitution are qualified rights and as such rights or freedoms that can be restricted or regulated by law, and that the grounds raised by the applicant are otherwise trivial, vexatious and hypothetical.

19.	We are not persuaded by the submissions advanced on behalf of the Intervenor.  The arguments, respectfully, conflate two issues: significance and merit. The applicant’s arguments in support of the constitutional validity of a law may ultimately be rejected by a Court and in that sense be found to be without merit.  However, that does not permit a conclusion that the constitutional issue raised was not a significant one.

20.	Having considered the terms of his application and the written and oral submissions made in support of it, we are unable to conclude that the constitutional issue raised by the applicant to do with laws that inter alia seek to regulate the rights of public servants who seek to stand for elective office, can objectively be viewed as trivial, vexatious, or hypothetical.  

21.	We accordingly find that the second requirement is satisfied.

IS THE APPLICANT A BUSYBODY?
22.	It is submitted on behalf of the Intervenor that based on the grounds raised the applicant is a busybody who is engaged in litigation for some improper motive because the applicant is not affected by the amendments and the issues raised by him should have been raised when the amendments to the Principal Act were made in 2020 and 2021.

23.	We are comfortably satisfied that the applicant is not a busybody who is meddling in the affairs of other people of no concern to him.  We repeat and rely upon the matters outlined at [14] of these Reasons.  Nor can it be reasonably found on the evidence that the applicant is acting by reason of an improper motive. The Intervenor’s concession that the applicant had demonstrated a genuine concern for the subject matter is, in the circumstances of this case, inconsistent with the propositions he seeks to advance with respect to this requirement.

24.	We accept the submission on behalf of the applicant that, as a constitutional officer holder representing officers of the National Public Service who he asserts are affected by the amendments to the Principal Act, there is no basis to conclude that he does not have a genuine concern that the amendments infringe the constitutional rights of the officers to stand for elective public office.

25.	Further, on the evidence, there can be no suggestion of unreasonable delay on the part of the applicant such as to raise, for example, the spectre of prejudice arising to third parties as a consequence of a contended failure to take steps in 2021 and 2022. None was asserted on behalf of the Intervenor.  On the evidence the applicant wrote to the Minister of Public Service on 26 October 2022 without response. He then filed his application to this Court on 28 April 2023. 

26.	Relevantly, neither section 18(1) of the Constitution nor the relevant Supreme Court Rules prescribe any time limits for the bringing of an application.   

27.	For these reasons we are not persuaded by the submission on behalf of the Intervenor that the applicant is not affected by the amendments and should have raised these issues when the amendments to the Principal Act were made in 2020 and 2021.  

28.	We find the third requirement of the Somare rules satisfied.
ARE THERE OTHER WAYS OF DETERMINING THE ISSUE?
29.	The Intervenor does not put this in issue.  The applicant, however, must still satisfy the Court with respect to this requirement.  

30.	The applicant concedes that there was another avenue open to him, namely by way of special reference to the Supreme Court under section 19(1) of the Constitution which enabled him to seek an opinion from the Court relating to the interpretation of the application of any provision of a constitutional law, including any question as to the validity of a law. By virtue of section 19(2) an opinion then given under subsection 1 would have the same binding effect as any other decision of the Supreme Court. 

31.	As noted earlier, the applicant wrote to the Minister of Public Service on 26 October 2022.  The Minister, as a law officer of Papua New Guinea would, by virtue of section 19(3)(c) of the Constitution, be viewed as an authority entitled to make an application under section 19(1).  Having received no response to his written communication, the applicant was entitled to conclude that the Minister had no interest in making the constitutional issue the applicant sought to ventilate the subject of a special reference. In the circumstances he was entitled to proceed, as he did, by bringing this application. In the context of a discretionary exercise the applicant’s actions only served to reinforce the Court’s earlier finding as to the genuineness of his concerns.

CONCLUSION 
32.	Applying the four (4) Somare rules to the facts of this case and for the reasons articulated we find that:

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 busybody and has no improper motive.
d.	Though there is another avenue of having the constitutional issue determined by the Court that does not permit a conclusion that he be refused standing.

33.	We find that the applicant should be granted standing.

ORDERS
34.	We make the following orders:

a.	The applicant’s request is granted.
b.	It is declared that the applicant has standing to make the application.
c.	The Intervenor 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. 
________________________________________________________
Mr. R. Simbil (Legal Advisory & Litigation Division – PSC): Lawyers for the Applicant	
Mr. Russell Uware & Ms Gabrielle Dusava (The State): Lawyers for the Intervenor