Home | Databases | WorldLII | Search | Feedback Supreme Court of Papua New Guinea

Application by the Honourable James Nomane [2025] PGSC 11; SC2706 (5 March 2025)

SC2706

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

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

3, 5 MARCH 2025

CONSTITUTIONAL LAW – practice and procedure – application for interim order restraining the Parliament from dealing with a proposed constitutional amendment, pending determination of an application under Constitution, s 18(1) – whether Supreme Court has jurisdiction to grant an interim order – Supreme Court Rules, Order 3 rule 2(b): Court may make “interim order to prevent prejudice to the claims of the parties” – whether an interim order would offend against the right to freedom of speech, debate and proceeding in the Parliament – Constitution, s 115(2).

The applicant filed an application in the Supreme Court under s 18(1) of the Constitution, seeking declarations and orders regarding a notice of motion of no confidence in the Prime Minister. He repelled an objection to the competency of the application and obtained a declaration that he had standing to make the application. He then, while the trial of his application was pending, applied for an interim order to restrain the Parliament from dealing with a proposed constitutional amendment regarding motions of no confidence in the Prime Minister. He based the application on Order 3 rule 2(a) of the Supreme Court Rules, which provides that where any proceedings in the original jurisdiction of the Supreme Court are pending before it, the Court may make “an interim order to prevent prejudice to the claims of the parties”. He claimed that if no such order were made, there is a risk that the Parliament would make the amendment to the Constitution, and if that happened, his substantive application would be futile.

Held:

Per Salika CJ & Cannings J:

(1) The Supreme Court has no clear jurisdiction to make the order sought, as to do so would offend against the right to freedom of speech, debate and proceeding in the Parliament guaranteed by s 115(2) of the Constitution.

(2) To the extent that there is any jurisdiction vested by Order 3 rule 2(a) of the Supreme Court Rules in the Court, in the context of hearing a s 18(1) Constitution, to restrain the Parliament from dealing with a proposed constitutional amendment, the application should be refused as the applicant failed to demonstrate that such an order is necessary to prevent prejudice to the claims he is making in his substantive application, in that: his application could still proceed to trial and succeed, the making of the constitutional amendment would not necessarily render his application futile and he would have the right to apply to the Court to challenge the validity of the constitutional amendment.

Per Hartshorn J, Kariko J & Dingake J:

(3) It has not been demonstrated that the Supreme Court has jurisdiction under Order 3 rule 2(a) of the Supreme Court Rules or any other law, including ss 155(4) and s 158(1) of the Constitution, to grant any order restraining the Parliament from debating any proposed law. To grant any such order would be contrary to s 115(2) and (3) of the Constitution.

By the Court:

(4) The application for an interim order to restrain the Parliament from dealing with the proposed constitutional amendment is refused.

Cases cited
Application by the Honourable James Nomane MP (2025) SC2705
Electoral Commission v Pila Niningi (2003) SC710
Kala Rawali v Paias Wingti; Tom Olga v Paias Wingti (2009) SC1033 PNG Tropical Wood Products Ltd v Manuel Gramgari (2013) SC1145
Nikint Investment Ltd v Niganu (2020) SC1919
Somare v Nape (2012) SC1175
Special Reference By Fly River Provincial Executive Council; Re-Organic Law on Integrity of Political Parties and Candidates (2010) SC1057
Special Reference by Hon Davis Steven (2020) SC2041
Supreme Court Reference No 1 of 2010, Reference by the Ombudsman Commission (2010) SC1027
Supreme Court Reference No 2 of 2017, Reference by the Ombudsman Commission (2017) SC1565
Telikom PNG Ltd v Kopalye (2021) SC2141

Counsel

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

1. SALIKA CJ and CANNINGS J: The applicant, the Honourable James Nomane MP, Member for Chuave Open and Deputy Leader of the Opposition, has filed an application in the Supreme Court under s 18(1) of the Constitution. He seeks declarations and orders regarding a notice of motion of no confidence in the Prime Minister dated 27 November 2024, which was not placed on the notice paper of the Parliament due to s 165 of the Standing Orders.

2. He has repelled an objection to the competency of the application (Application by the Honourable James Nomane MP (2025) SC2705) and obtained a declaration that he has standing to make the application.

3. He then, while the trial of his application is pending, moved an application for an interim order to restrain the Parliament from dealing with in any manner or form a proposed constitutional amendment entitled Constitutional Amendment (Motion of No Confidence Law) 2024 regarding motions of no confidence in the Prime Minister.

4. We now rule on that application for an interim order, which was filed on 24 January 2005. The application is based on Order 3 rule 2(a) of the Supreme Court Rules, which provides that where any proceedings in the original jurisdiction of the Supreme Court are pending before it, the Court may make “an interim order to prevent prejudice to the claims of the parties”.

5. The applicant’s substantive s 18(1) application is within the original jurisdiction of the Supreme Court.

6. The applicant claims that if no such order is made, there is a risk that the Parliament will make the amendment to the Constitution, which seeks to amend s 145 of the Constitution by introducing a new subsection (5) in these terms:

Where a motion of no confidence in the Prime Minister is unsuccessful, a subsequent motion of no confidence shall not be moved for another period of 18 months commencing on the date that the motion of no confidence is unsuccessful.

7. He argues that if that amendment is made, his substantive application will become futile. It will be an academic exercise only. He would be faced with the prospect of having his motion of no confidence of 27 November 2024 being prohibited as it was made within 18 months after a previous motion of no confidence in the Prime Minister was rejected by the Parliament on 12 September 2024.

8. 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 application for the interim order.

REFUSAL OF INTERIM ORDER

9. We refuse to make the interim order restraining the Parliament from dealing with Constitutional Amendment (Motion of No Confidence Law) 2024, for two reasons.

Lack of jurisdiction

10. First, we are not convinced that the Supreme Court has any jurisdiction to make the order sought, as to do so would offend against the right to freedom of speech, debate and proceeding in the Parliament guaranteed by s 115(2) of the Constitution, which provides:

There shall be freedom of speech, debate and proceeding in the Parliament, and the exercise of those freedoms shall not be questioned in any court or in any proceedings whatever (otherwise than in proceedings in the Parliament or before a committee of the Parliament).
11. Making an order that would injunct the Parliament from conducting parliamentary business would be an unprecedented step for the Court to take. It would not only interfere with the right of all members of the Parliament to debate a significant proposed amendment to the Constitution, it would tend to interfere with the principle of separation of powers in s 99 of the Constitution.

12. This Court would only contemplate such a course of action in the case of a clear and proven breach of the Constitution in the process of making a Constitutional Law.

13. We note that on two previous occasions the Court has heard similar applications to restrain the Parliament from conducting its parliamentary business of law making. In both Supreme Court Reference No 1 of 2010, Reference by the Ombudsman Commission (2010) SC1027 and Supreme Court Reference No 2 of 2017, Reference by the Ombudsman Commission (2017) SC1565, the Court refused the applications. It refused to intervene, on both occasions emphasising that as a general rule, the parliamentary process of law-making shall be allowed to run its course.

14. All that has happened in the present case is that the applicant has demonstrated that he has a sufficient interest in the matter and that he is raising significant constitutional issues. We have refused an objection to the competency of the application. We have reached no conclusion that he has raised an arguable case. The substantive application is at a preliminary stage. In these circumstances it would be contrary to the interests of justice to entertain further such a significant intrusion into the business of the Parliament. We lack jurisdiction to entertain it.

Not necessary to prevent prejudice

15. Secondly, if we were persuaded that we had jurisdiction to make the interim order sought, we are not satisfied that such an order is necessary to prevent prejudice to the claims of the applicant.
16. In his substantive application he seeks an order that the Speaker be required to recall the Parliament forthwith to debate the motion of no confidence in the Prime Minister of 27 November 2024. He would be free to prosecute the application for that order irrespective of whether the Parliament has made the proposed constitutional amendment. His application would not necessarily be rendered futile if the Parliament were to make the amendment. As we understand it, the proposed constitutional amendment would operate prospectively, not retrospectively.

17. Furthermore, if the proposed amendment to the Constitution were made, the applicant and other interested parties would be able to apply to the Court under s 18(1) of the Constitution to challenge the amendment. The amendment could also be challenged by the making of a special reference to the Court under s 19 of the Constitution.

CONCLUSION

18. The application will be refused for two reasons: lack of jurisdiction, and, to the extent that there is jurisdiction, it has not been enlivened. Costs will follow the event.

19. HARTSHORN J, KARIKO J and DINGAKE J: We have had the opportunity of reading the draft judgment of the Chief Justice and Justice Cannings. We agree that the applicant’s interim application to restrain the National Parliament in the manner detailed in the said application should be refused. This judgment sets out our own reasoning.

20. We adopt the background to this matter as set out in the judgment of the other members of this Court.

21. The applicant seeks a restraining order pursuant to Order 3 rule 2(b) Supreme Court Rules. The applicant had also relied upon s 155(4) Constitution but informed the Court that he was no longer relying on that provision. The application is therefore to be determined pursuant to reliance upon Order 3 rule 2(b) only.

22. The applicant seeks to restrain the National Parliament, “from dealing with, in any manner or form, howsoever, including conducting a reading, voting or debating on the Constitutional Amendment Law titled Constitutional Amendment (Motion of No Confidence) Law 2024.”

23. The grounds for the interim application include that it is necessary to prevent Parliament from debating on the said Constitutional Amendment and such an order is necessary to prevent prejudice to the claims of the applicant in this proceeding.

24. The first issue that arises is whether Order 3 rule 2(b) Supreme Court Rules is able to provide to the Supreme Court the jurisdiction to be able to restrain the National Parliament in the manner by which application is made, or at all.

25. A Rule of Court is not able to provide a jurisdiction to the Supreme Court which the Constitution does not: Special Reference by Hon. Davis Steven (2020) SC2041 at [10]. See also Somare v Nape (2012) SC1175 at [10].

26. The applicant submits that the cumulative effect of s 19(2) and (5) Constitution is to vest jurisdiction to the Supreme Court to deal with and determine any constitutional questions concerning any aspect of the lawmaking process in the National Parliament.

27. The applicant, however, has not relied upon s 19 in his interim application and this substantive application is made pursuant to s. 18(1) Constitution. In any event, s 19 does not provide the jurisdiction for the Supreme Court to restrain the National Parliament.

28. The applicant refers in submissions of the interveners to s 115 Constitution and submissions relying on that provision to resist the application for an interim order to restrain the National Parliament.

29. Sections 115(2) and (3) Constitution are as follows:

(2) There shall be freedom of speech, debate and proceeding in the Parliament, and the exercise of those freedoms shall not be questioned in any court or in any proceedings whatever (otherwise than in proceedings in the Parliament or before a committee of the Parliament).

(3) No member of the Parliament is subject to the jurisdiction of any court in respect of the exercise of his powers or the performance of his functions, duties or responsibilities as such, but this subsection does not affect the operation of Division III.2 (leadership code).

30. These sections are not subject to any other law or Constitutional provision apart from the operation of the Leadership Code.

31. In Special Reference By Fly River Provincial Executive Council; Re-Organic Law on Integrity of Political Parties and Candidates (2010) SC1057 the five-member Supreme Court said at [239]:

.... subsection (3) reiterates that unless a Member is charged with a leadership offence, a Member is not subject to the jurisdiction of any Court for exercising his powers or performing his duties, functions and responsibilities in Parliament.

and at [269]:

The rights and privileges accorded to Members by s 115 are given by Constitutional Law and privileges and they cannot be taken away by any other law, especially the freedoms of speech, debate and proceedings which are pertinent to this Reference. These are essential aspects of a Member’s duties and responsibilities to engage in full and meaningful debates in the Parliament on behalf of his people. Thus, any law which interferes with and takes away these rights and privileges would be in direct contravention of s 115 of the Constitution, see; SCR No 2 of 1982; Re Organic Law [1982] PNGLR 214 at 235-237 per Kapi J (as he then was).
32. If the restraining order sought is granted, it would be contrary to s 115(2) and (3) Constitution. The restraining order if granted, would restrict the exercise of the powers or performance of the functions, duties or responsibilities of Members of Parliament and the exercise of freedom of speech, debate and the proceedings of Parliament.

33. The applicant has not relied upon any provision in his application which provides this Court with the jurisdiction to make an order, which would be contrary to ss 115(2) and (3) Constitution. Further, no provision has been brought to the attention of this Court which would provide to the Court the jurisdiction to make orders contrary to s 115(2) and (3) Constitution.

34. Reference was made in argument to s 155(4) and s 158(2) Constitution. These provisions are general provisions and in our view do not provide the power to make an order contrary to the specific provisions of s 115(2) and (3) Constitution.

35. Further, in regard to reliance upon s 155(4) and s 158(2) Constitution for orders to be made which are necessary to do justice in the circumstances of a particular case and for paramount consideration to be given to the dispensation of justice we refer to some of the numerous opinions of the Supreme Court which are to the effect that “justice” is to be interpreted as “justice according to law”: Electoral Commission v Pila Niningi (2003) SC710; Kala Rawali v Paias Wingti; Tom Olga v Paias Wingti (2009) SC1033; PNG Tropical Wood Products Ltd v Manuel Gramgari (2013) SC1145; Nikint Investment Ltd v Niganu (2020) SC1919; Telikom PNG Ltd v Kopalye (2021) SC2141.

36. Here, as mentioned, it has not been brought to the attention of this Court that there is a law or provision of the Constitution which provides jurisdiction to make orders contrary to s 115(2) and (3) Constitution.

37. Consequently, it has not been demonstrated that this Court has the jurisdiction to make the interim order sought. Further, regard is to be had to s 99(3) Constitution concerning the separation of powers of the three principal arms of the National Government.

38. Given the above it is not necessary to consider the other submissions of counsel. The interim relief sought by the applicant should be refused.

39. BY THE COURT: The order of the Court is:

(1) The applicant’s application filed on 24 January 2025 for an interim order to restrain the Parliament from dealing with the Constitutional Amendment (Motion of No Confidence Law) 2024, is refused.

(2) The applicant shall pay the interveners’ costs of and incidental to the application filed on 24 January 2025 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