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Application by the Honourable James Nomane [2025] PGSC 10; SC2705 (3 March 2025)

SC2705

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCCA NO 1 OF 2025

IN THE MATTER OF AN APPLICATION
PURSUANT TO CONSTITUTION, SECTION 18(1)

APPLICATION BY THE HONOURABLE JAMES NOMANE MP,
MEMBER FOR CHUAVE OPEN &
DEPUTY LEADER OF THE OPPOSITION

WAIGAN: SALIKA CJ, CANNINGS J,
HARTSHORN J, KARIKO J, DINGAKE J

28 FEBRUARY, 3 MARCH 2025

CONSTITUTIONAL LAW – practice and procedure – objection to competency of application under Constitution, s 18(1) – whether application incompetent due to its seeking interpretation and application of Standing Orders of the National Parliament – whether application questioning compliance with non-justiciable parliamentary procedures – Constitution, s 134 (proceedings non-justiciable) – whether application failed to request proper interpretation of Constitutional Laws – whether application was futile and non-viable – whether incorrect pleading of decision and decision-maker.

The applicant filed an application in the Supreme Court under s 18(1) of the Constitution. He sought declarations and orders as to interpretation and application of provisions of the Constitution regarding a notice of motion of no confidence in the Prime Minister, which, though given to the acting Speaker and apparently compliant with s 145 of the Constitution, was on 27 November 2024 not placed on the notice paper for deliberation by the Parliament due to s 165 of the Standing Orders. Section 165 provides that the Speaker may in his discretion disallow a motion that is the same in substance as any question that has been resolved during the previous 12 months. The position of the Private Business Committee, which was acted on by the acting Speaker, was that a previous motion of no confidence in the same Prime Minister had been resolved in the negative on 12 September 2024, and the motion of 27 November 2024 was the same in substance as that motion. The applicant argued amongst other things that s 165 of the Standing Orders was unconstitutional. The second intervener, the Attorney-General, filed an objection to competency of the application, relying on five grounds: (1) it seeks interpretation and application of the Standing Orders, which are not Constitutional Laws; (2) it pleads breaches of procedures prescribed for the Parliament and the Private Business Committee, which are non-justiciable matters under s 134 of the Constitution; (3) it is non-compliant with the Supreme Court Rules and does not request a proper interpretation of any Constitutional Law; (4) it is futile and non-viable; and (5) it fails to adequately plead who made the decision of 27 November 2024.

Held:

(1) The applicant’s primary argument appears to be that s 165 of the Standing Orders is unconstitutional. That is a question that is within the jurisdiction of the Supreme Court. Ground (1) refused.

(2) The application challenges the constitutionality of s 165 of the Standing Orders and pleads that decisions made that relied on it are unconstitutional. The matters it pleads are justiciable. Ground (2) refused.

(3) The application is compliant with the Supreme Court Rules and requests a proper interpretation of Constitutional Laws. Ground (3) refused.

(4) The application is not futile or non-viable. Ground (4) refused.

(5) It is adequately pleaded that a decision was made on 27 November 2024 to not place the notice of motion on the notice paper. Ground (5) refused.

(6) All grounds of objection refused. The application will proceed to trial.

Cases cited
Application by the Honourable Belden Norman Namah MP (2020) SC2040
Application by the Honourable Douglas Tomuriesa MP (2024) SC2610

Counsel

P Mawa for the applicant
S Ranewa for the first intervener, the Speaker of the National Parliament
L A Jurth, E S Geita & T Mileng for the second intervener, the Attorney-General

1. BY THE COURT: This is a ruling on an objection to competency of an application to the Supreme Court under s 18(1) of the Constitution.

2. The application was filed by the applicant, the Honourable James Nomane MP, Member for Chuave Open and Deputy Leader of the Opposition, on 23 January 2025. He applies for declarations and orders regarding a notice of motion of no confidence in the Prime Minister, the Honourable James Marape MP, which, though given to the acting Speaker and apparently compliant with s 145 of the Constitution, was on 27 November 2024 not placed on the notice paper for deliberation by the Parliament due to s 165 of the Standing Orders.

3. Section 165 provides that the Speaker may in his discretion disallow a motion that is the same in substance as any question that has been resolved during the previous 12 months. The position of the Private Business Committee, which was acted on by the acting Speaker, the Honourable Koni Iguan MP, was that a previous motion of no confidence in the same Prime Minister had been resolved in the negative on 12 September 2024, and the motion of 27 November 2024 was the same in substance as that motion.

INTERVENERS

4. The Speaker of the National Parliament, the Honourable Job Pomat MP, and the Attorney-General, the Honourable Pila Niningi MP, have been granted leave to join the proceedings as first and second interveners respectively. They each oppose the relief sought by the applicant.

RELIEF SOUGHT BY APPLICANT

5. The applicant seeks nine declarations and orders:

1. A declaration that the Private Business Committee’s decision of 27 November 2024 to reject the motion of no confidence was unconstitutional for being in breach of s 111 (right to introduce bills etc) of the Constitution.
   
2. A declaration that the Parliament’s resolution of 12 September 2024 to reject a motion of no confidence in the Prime Minister did not perforce of ss 50(1)(e), 111(1), 142(5) and 145 of the Constitution, restrict the right of members of the Parliament to submit another motion of no confidence in the same Prime Minister.
   
3. A declaration that the decision of the acting Speaker and/or the Private Business Committee to not place the motion of no confidence on the notice paper was contrary to the principle of collective responsibility of the executive arm of government to the Parliament under s 141 of the Constitution.
   
4. A declaration that s 165 of the Standing Orders, to the extent that it applies to a motion of no confidence, is unconstitutional for being inconsistent with ss 50(1)(e), 111(1), 142(5) and 145 of the Constitution.
   
5. A declaration that s 134 (proceedings non-justiciable) of the Constitution does not limit the Supreme Court’s jurisdiction to declare the decision of the Private Business Committee unconstitutional.
   
6. A declaration that the question of whether s 165 of the Standing Orders is unconstitutional is justiciable.
   
7. A declaration that the decision of the Private Business Committee to reject the motion of no confidence is invalid, inconsistent or ineffective pursuant to s 11(1) of the Constitution.
   
8. An order that the Speaker of the Parliament recall the Parliament forthwith to debate the motion of no confidence of 27 November 2024.
   
9. An order that the Private Business Committee deliver the motion of no confidence to the Clerk of the Parliament, who shall list it on the notice paper.
   

GROUNDS OF OBJECTION TO COMPETENCY

6. The second intervener, the Attorney-General, filed a notice of objection to competency of the application on 13 February 2025, relying on five grounds of objection:

1. It seeks interpretation and application of the Standing Orders, which are not Constitutional Laws.
   
2. It seeks the Court’s interpretation and application of alleged breaches of procedures prescribed for the Parliament and the Private Business Committee, which are non-justiciable matters under s 134 of the Constitution.
   
3. It is non-compliant with Order 4, rules 1 and 3 and form 1 of the Supreme Court Rules and does not request a proper interpretation of any Constitutional Law.
   
4. It is futile and non-viable as it relies on s 165 of the Standing Orders while at the same time arguing that s 165 is unconstitutional and it seeks substantive relief without pleading a proper basis on which such relief could be granted.
   
5. It fails to adequately plead and identify with sufficient clarity who made the decision of 27 November 2024 to not place the motion of no confidence on the notice paper.
   

7. The first intervener, the Speaker, supports the objection to competency.

8. We will deal with each of the grounds of objection in turn.

GROUND 1: NO JURISDICTION TO INTERPRET STANDING ORDERS

9. It is clear that the Standing Orders are not Constitutional Laws. If the relief sought by the applicant were based entirely on alleged breaches of the Standing Orders, the jurisdiction of the Court under s 18(1) of the Constitution would not be engaged.

10. However, the applicant’s primary argument appears to be that s 165 of the Standing Orders is unconstitutional. That is a question that is within the jurisdiction of the Supreme Court. The fact that the application seeks interpretation and application of the Standing Orders does not render the application incompetent. We refuse ground 1.

GROUND 2: THE APPLICATION SEEKS INTERPRETATION AND APPLICATION OF NON-JUSTICIABLE MATTERS

11. This ground of objection is based on s 134 (proceedings non- justiciable) of the Constitution, which states:

Except as is specifically provided by a Constitutional Law, the question, whether the procedures prescribed for the Parliament or its committees have been complied with, is non-justiciable, and a certificate by the Speaker under Section 110 (certification as to making of laws) is conclusive as to the matters required to be set out in it.

12. The interveners argue that the applicant seeks to question whether procedures prescribed for the Parliament, in particular s 165 of the Standing Orders, have been complied with, which matters are non-justiciable.

“Non-justiciable” is defined in Schedule 1.7 (“non-justiciable”) of the Constitution:

Where a Constitutional Law declares a question to be non-justiciable, the question may not be heard or determined by any court or tribunal, but nothing in this section limits the jurisdiction of the Ombudsman Commission or of any other tribunal established for the purposes of Division III.2 (leadership code).

13. That means that, subject to the qualification provided by the section itself, questions as to whether the procedures prescribed for the Parliament have been complied with may not be heard or determined by any court, and that includes the Supreme Court (Application by the Honourable Belden Norman Namah MP (2020) SC2040).

14. The interveners rely on the recent decision of the Supreme Court in Application by the Honourable Douglas Tomuriesa MP (2024) SC2610. The Court upheld an objection to competency of a s 18(1) Constitution application as it was based on arguments that procedures prescribed for the Parliament other than those specifically provided for in a Constitutional Law had not been complied with, which were non-justiciable matters under s 134 of the Constitution.

15. We consider that the nature of the present application is different to that in Tomuriesa. In the present case, the applicant’s fundamental proposition is not that the prescribed procedures were not complied with, but that they were complied with, and that they – in particular, s 165 of the Standing Orders – are unconstitutional.

16. As the application challenges the constitutionality of s 165 of the Standing Orders and pleads that decisions made that relied on it are unconstitutional, it is not questioning whether the procedures prescribed for the Parliament were complied with.

17. The application is pleading matters that are justiciable and within the jurisdiction of the Supreme Court. We refuse ground 2.

GROUND 3: THE APPLICATION DOES NOT REQUEST A PROPER INTERPRETATION OF ANY CONSTITUTIONAL LAW

18. The interveners argue that the application does not comply with Order 4, rules 1 and 3 and form 1 of the Supreme Court Rules as, although it pleads that it is based on ss 11, 108, 111, 118, 134, 141, 142 and 145 of the Constitution, it does not proceed to set forth clearly the proper interpretation of those provisions, and it does not state any questions relating to the interpretation and application of those or any other constitutional provisions.

19. We are not persuaded by the argument that the application is non-compliant with Order 4, rules 1 and 3 and form 1 of the Supreme Court Rules. The question of whether the applicant requests a “proper” interpretation of the Constitutional Laws can only be determined at the hearing of the application. The alleged failure to seek a proper interpretation is not a matter going to the jurisdiction of the Court. Ground 3 is refused.

GROUND 4: THE APPLICATION IS FUTILE AND NON-VIABLE

20. The interveners argue that the application is futile and non-viable as it relies on s 165 of the Standing Orders while at the same time arguing that s 165 is unconstitutional, and it seeks substantive relief without pleading a proper basis on which such relief could be granted.

21. We reiterate that the applicant’s fundamental proposition apparently is that s 165 of the Standing Orders is unconstitutional. The application does not rely on it, other than to highlight that it appears to be the law relied on to support the decision to not place the motion of no confidence on the notice paper. We see no necessary contradiction between relying on s 165 in that manner, and arguing that s 165 is unconstitutional.

22. The interveners’ related argument is that, though the application seeks substantive relief that the motion of no confidence of 27 November 2024 be allowed to be placed on the notice paper, it does not first seek a declaration that the motion of no confidence is itself proper.

23. It is correct that the application does not expressly seek a declaration that the motion of no confidence is proper. However, the technical correctness of the notice of motion is necessarily implied by reference in paragraph 4.9 of the application to the reasoning of the Private Business Committee, which was that the motion would not be placed on the notice paper, though it “meets the requirements of s 145 of the Constitution”.

24. The application is not futile or non-viable. Ground (4) is refused.

GROUND 5: INCORRECT PLEADING OF DECISION AND DECISION-MAKER

25. The interveners argue that the application fails to adequately plead and identify with sufficient clarity the subject matter of grievance. It does not clearly plead who made the decision of 27 November 2024 (whether it was the Private Business Committee or the acting Speaker in his capacity as Chairman of the Private Business Committee or as the acting Speaker on the floor of the Parliament) and what the actual decision was. It is argued that the interveners are embarrassed by not knowing the case they have to meet and are prejudiced as a result.

26. There may indeed be some confusion, arising from the manner in which the acting Speaker made the announcement in the Parliament that the motion of no confidence would not be placed on the notice matter. Who made that decision? And in what capacity?

27. However, it is adequately pleaded that a decision was made on 27 November 2024 to not place the notice of motion on the notice paper. Any lack of clarity as to who made the decision and the precise nature of the decision can be resolved at trial. Ground (5) is refused.

CONCLUSION

28. None of the grounds of objection to competency are sustained. The objection will be refused. Costs will follow the event.

ORDER

(1) The objection to competency of the proceedings, made by the notice of objection to competency filed on 13 February 2025, is refused.

(2) The application will proceed to trial in accordance with directions of the Court.

(3) The interveners shall pay the applicant’s costs of and incidental to the objection to competency on a party-party basis, which shall if not agreed be taxed.

_____________________________________________________________
Lawyers for the applicant : Mawa Lawyers
Lawyers for the first intervener : Kawat Lawyers
Lawyer for the second intervener : Solicitor-General