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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO 165 OF 2013
IN THE MATTER OF AN APPLICATION
PURSUANT TO CONSTITUTION, SECTION 18(1)
HON BELDEN NORMAN NAMAH MP,
LEADER OF THE OPPOSITION
Applicant
V
HON KERENGA KUA MP,
ATTORNEY-GENERAL & MINISTER FOR JUSTICE
First Respondent
HON THEODORE ZURENUOC MP,
SPEAKER OF THE NATIONAL PARLIAMENT
Second Respondent
Waigani: Sakora J, Cannings J, Poole J
2014: 30th May, 5th June
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 calling of meetings of the Parliament and motions of no confidence in the Prime Minister: Sections 124 (calling etc), 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, and two proposed amendments regarding Section 124 (calling etc), which deals with the minimum period that the Parliament must meet within each period of 12 months, and Section 145. He proposed to argue that all the amendments (including the proposed 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. The request was opposed by the two respondents to the application, the Attorney-General and the Speaker of the National Parliament, on two principal grounds. First, the applicant had not come to court with clean hands, which throws doubt on the propriety and genuineness of his motive, as he had voted in favour of the amendment to Section 145 of the Constitution at the first opportunity for debate. Secondly, there are existing proceedings under Section 18(1) of the Constitution, which raise the same issues that the applicant wishes to raise.
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, Application by Ila Geno (2014) SC1313).
(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 is the holder of a public office, the functions of which relate to 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: the fact that he appears to have changed his mind as to the appropriateness of the constitutional amendments is not an indication of improper motive;
- (d) though there is another Section 18(1) proceeding on foot, which relates to the issues underlying this application, that is not by itself a good reason to refuse a request for a declaration as to standing, and the existing proceedings will not address all issues that are raised by this application.
(4) The applicant therefore has standing to make the application. His request for a declaration that he has standing was granted.
Cases cited
The following cases are cited in the judgment:
Application by Ila Geno (2014) SC1313
Belden Norman Namah MP v Rimbink Pato MP, National Executive Council & The State (2014) SC1304
Namah v Kua & Zurenuoc, SCA No 165 of 2013, 13.05.14, unreported
Re Petition of MT Somare [1981] PNGLR 265
Special Reference by the Fly River Provincial Executive, Re the Organic Law on the Integrity of Political Parties and Candidates (2010) SC1057
Titi Christian v Rabbie Namaliu SCOS No 2 of 1995, 18.07.96 unreported
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
L R Henao, for the Applicant
I Molloy & E P Asigau, for the First Respondent
T Tanuvasa, for the Second Respondent
5th June, 2015
1. BY THE COURT: The Leader of the Opposition Hon Belden Norman Namah MP 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 filed the application on 11 October 2013. He needs a declaration as to his standing before he can have it heard. The requirement for such a declaration arises pursuant to Order 4, Rules 1(b)(ii) and 3(a) and Form 1, paragraph 1 of the Supreme Court Rules 2012.
THE APPLICATION
3. The applicant seeks declarations as to the constitutionality of:
The two actual amendments
4. The first amendment of Section 145 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.
5. 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.]
The two proposed amendments
6. The application filed on 11 October 2013 challenges the constitutional validity of "Constitutional Amendment (Motion of No Confidence) Law 2013" and "Constitutional Amendment (Calling of Parliament) Law 2013". The application presupposes that such Laws have been made by the Parliament. However the material filed by the applicant does not show that such laws have actually been made. We prefer to call them proposed amendments to the Constitution. They should only be regarded as Laws that have amended the Constitution when there is proof that they have actually been made by the Parliament.
7. The proposed Constitutional Amendment (Motion of No Confidence) Law 2013 would further amend Section 145(1)(b) of the Constitution by deleting the words "one week's" and "one-tenth" and replacing them with the words "one month's" and "one-fifth".
8. The proposed Constitutional Amendment (Calling of Parliament) Law 2013 would amend Section 124(1) of the Constitution, which presently reads:
The Parliament shall be called to meet not more than seven days after the day fixed for the return of the writs for a general election, and shall meet not less frequently than three times in each period of 12 months, and, in principle, for not less than nine weeks in each such period.
9. The proposed amendment would repeal the words and figures "not less frequently than three times in each period of 12 months, and, in principle, for not less than nine weeks in each such period" and replace them with the following: "not less than 40 days in each period of 12 months".
THE REQUEST
10. The basis on which the applicant claims standing to make the application is stated at paragraph 2 of the application:
The applicant is a citizen of Papua New Guinea, he is a member of the National Parliament and is the Leader of the Opposition in Parliament.
METHODOLOGY
11. It was recently affirmed by the Supreme Court in Namah v Pato (2014) SC1304 and Application by Ila Geno (2014) SC1313 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 subsequent cases, which can be summarised as follows:
APPLYING THE SOMARE RULES TO THIS CASE
12. We now address the question of whether, according to the Somare rules, this Court should exercise its discretion in favour of the applicant and determine that he has standing to make the application under Section 18(1) of the Constitution.
1 Sufficient interest?
13. The applicant is the holder of a public office. He is Leader of the Opposition and amongst the functions of that office are holding the Government of the day to account for its actions and contributing to parliamentary debate on the merits of proposed legislation, particularly proposed amendments to the Constitutional Laws.
14. The respondents concede that the nature and functions of the office that he holds mean that he has a sufficient interest in the subject matter of the application. The concession is properly made and we are satisfied that the applicant has a sufficient interest.
2 Significant constitutional issues?
15. We apprehend, from the terms of the application filed on 11 October 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 and that the two proposed amendments to Sections 124 and 145 of the Constitution will, if made by the Parliament, be unconstitutional, as they:
16. Similar arguments are being made by Mr Ila Geno in an application under Section 18(1) of the Constitution, SCA No 177 of 2013, which was filed on 3 December 2013. That application, like the present one, challenges the validity of Constitutional Amendment No 14 and Constitutional Amendment No 36. This Court on 28 February 2014 declared that Mr Geno had standing to make the application. In the course of doing so it was considered that the constitutional issues raised were significant (Application by Ila Geno (2014) SC1313).
17. There is no reason for making a different assessment in this case. Indeed the respondents concede that the application raises significant constitutional issues. 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 or acting for an improper motive?
18. 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 the Leader of the Opposition, an office which is specifically recognised in the Constitution (Sections 26(1) (b) (application of Division 2), 176(4) (establishment of offices), 190(2) (c) (establishment of the Commission), 216A (2) (c) (the Salaries and Remuneration Commission) and 217(2) (c) (the Ombudsman Commission)). It is a legitimate role of the Leader of the Opposition to challenge the validity of legislative decisions of the National Parliament, particularly those involving amendments to the Constitution.
19. The respondents argue, however, that the genuineness of the applicant's motives must be questioned, for two reasons. First, he is seeking to challenge an amendment to the Constitution that was made 23 years ago (Constitutional Amendment No 14 of 1991). If he has a genuine concern for its constitutionality why didn't he act a lot earlier? He has been a member of the Parliament for a number of years. Why has he left it so long to raise his concerns?
20. We are not impressed by this argument. There is no limitation period that has to be complied with by a person who wishes to challenge the validity of an amendment to the Constitution. There is no doctrine of estoppel that can be invoked against a person such as the applicant who has allowed a law to go unchallenged for many years before challenging its constitutionality (Titi Christian v Rabbie Namaliu SCOS No 2 of 1995, 18.07.96 unreported, in particular per Kapi DCJ). The fact that the applicant has taken no steps to challenge a law that has been in operation for a considerable period does not call into question the genuineness of his motives.
21. The second reason for questioning the applicant's motives deserves a deeper consideration. Mr Molloy for the first respondent, supported by Mr Tanuvasa for the second respondent, submitted that the applicant's lack of bona fides is underscored by the fact that at the first opportunity for debate in the Parliament of the then proposed Constitutional Amendment No 36, on 27 November 2012, he not only did not oppose the amendment, he actively supported it, stating amongst other things:
Thank you Mr Speaker, as the Leader of the Opposition and member for Vanimo-Green and the entire Opposition, Members fully support the proposed amendment bill, which seeks to extend the grace period from 18 to 30 months ... How can one government be measured within 18 months? ... In fact we should make a law that when a government is elected it should serve the entire five years ... [sic]
Mr Speaker, we may be on this side of the House but when such important laws are introduced on this floor of Parliament we need a bi-partisan approach and support. In a country founded on the principles of justice and fair play, we the Opposition believe it is unfair and injustice to expect the government to prove its full potential within 18 months. Therefore we as politicians and responsible leaders totally support the bill for an extension of 30 months...
Mr Speaker the Opposition fully supports the purpose and intent of the proposed amendment and supports the amendment to Section 145 of the Constitution of the Independent State of PNG.
22. The respondents point out that at that first opportunity for debate, members of the Parliament voted 102 to zero in favour of the proposed amendment. At the second opportunity for debate on 5 February 2013, members of the Parliament voted 90 to 14 in favour of the proposed amendment. Though it is possible that the applicant was one of those 14 members who voted against the proposed amendment on 5 February 2013, this is not clear, the respondents assert. An affidavit of the applicant's counsel, Mr Henao, that he has spoken to the applicant, who told him that he voted against the proposed amendment on 5 February 2013, contained a hearsay account of how the applicant voted and should not be relied on. But even if it is accepted that the applicant did vote against the proposed amendment, the respondents highlight the fact that he did not take the opportunity to debate the issue. The only members who spoke against the proposed amendment were Dr Allan Marat and Mr Malakai Tabar.
23. All this sheds considerable doubt on the genuineness of the applicant's motives, the respondents assert. Mr Molloy submitted that the applicant has not approached the Court with 'clean hands'. The respondents argue that it is apparent that the applicant only brought this application after he realised that he could not bring a motion of no confidence against the current Prime Minister and that he has not made the application out of a genuine concern for the subject matter. The applicant is driven instead by his aspiration to be Prime Minister.
24. We agree with the respondents that the applicant has completely altered his position on the amendment to Section 145. However, we uphold the submission of Mr Henao for the applicant that it is not the business of the Court to inquire into why the change in position has come about. It might be due entirely too personal political ambition, as suggested by the respondents. It might be due to initial ignorance as to the implications of the amendment. It might be because the members of the Opposition obtained legal advice and reached the carefully considered view that the amendment would cut across the principle of responsible government. There is insufficient evidence to draw any of those conclusions.
25. We could speculate and draw inferences but ultimately that would be a fruitless inquiry as it is the right of every member of the Parliament to vote freely and independently and without encumbrance on every matter raised in the Parliament. This is a Basic Right guaranteed by Section 50 (right to vote and stand for public office) of the Constitution, which states:
(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who—
(a) is under sentence of death or imprisonment for a period of more than nine months; or
(b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph,
has the right, and shall be given a reasonable opportunity—
(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives; and
(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and
(e) to hold public office and to exercise public functions.
(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.
26. In Special Reference by the Fly River Provincial Executive, Re the Organic Law on the Integrity of Political Parties and Candidates (2010) SC1057 ('the OLIPAC case') the Supreme Court (Injia CJ, Salika DCJ, Sakora J, Kirriwom J, Gavara-Nanu J) regarded the freedom of each member of the Parliament to vote as he or she pleases on every matter before the Parliament as deriving from Section 50(1) (e). The Court stated unanimously at paragraphs 209, 222 and 224:
209. An MP's right to vote on a proposed law is considered amongst the most fundamental of his electoral and representative duties and there is no authority to deny the performance of this duty under any circumstance...
222. It is obvious to us that under the Westminster system, an MP has complete freedom to engage in debate and to cast his vote. An MP's decision to vote on a proposed law is made in the Parliament free from any external influences or party resolution made outside the Parliament...
224. In our view s 50(1) (e) when read liberally provides for the right of a MP to be allowed reasonable opportunity to perform the function of the office to which he or she has been elected, the right to freely express himself or herself in the Parliament during debates on a bill for enactment that concerns the MP's electorate or the nation; and to have complete freedom in debates and to vote on a bill for enactment into law (s 114).
27. The right of every member of the Parliament to vote as he or she sees fit means that no member, including the Leader of the Opposition, is bound by their initial position on any matter that is before the Parliament. The applicant had a constitutional right to change his mind. He has exercised that right and no improper motive ought to be imputed to him for doing so.
28. That the applicant is not a busybody and is not acting for any improper motives are factors favouring the conclusion that he has standing. The third requirement is satisfied.
4 Other ways of determining the issues?
29. The respondents point to the Section 18(1) Constitution application of Mr Ila Geno, SCA No 177 of 2013, referred to earlier. That application, like the present one, challenges the validity of Constitutional Amendment No 14 and Constitutional Amendment No 36. This Court on 28 February 2014 declared that Mr Geno had standing to make the application (Application by Ila Geno (2014) SC1313), so that application, though filed later than the present one, is at a more advanced stage. The respondents argue that if the applicant is granted standing the hearing of Mr Geno's application will inevitably be delayed and lead to confusion and an unnecessary multiplicity of proceedings. These factors support a refusal of leave.
30. We agree that the existence of Mr Geno's application, which raises similar issues to those raised by the applicant's, and is at a more advanced stage than the present application, are relevant matters to take into account in the exercise of the Court's discretion.
31. However, we consider that the respondents are overstating the practical problems that might arise in having two separate applications before the Court, covering the same subject matter, but at different stages of progression towards hearing. These issues have already been addressed and accommodated by the Court. Kassman J, sitting as a single Judge of the Supreme Court, recently ordered that in the event that the applicant is granted standing, the proceedings will be consolidated with Mr Geno's application (Namah v Kua & Zurenuoc, SCA No 165 of 2013, 13.05.14, unreported).
32. We also take into account that the applicant proposes to challenge the constitutional validity of two proposed constitutional amendments that are not the subject of Mr Geno's application. So his matter is not a facsimile of Mr Geno's application.
33. It might also turn out that the applicant will want to put his own arguments to the Court, through his own counsel, which might or might not be the same as the arguments advanced by Mr Geno. There is always the risk of duplication of argument, which can lead to an inefficient use of judicial time, but with appropriate directions given by the Court, that risk can be managed and minimised.
34. Ultimately the existence and status of Mr Geno's application are not factors that persuade us that the applicant's request should be refused.
CONCLUSION
35. Applying the four Somare rules to the facts of this case shows that:
36. All four criteria that comprise the Somare rules support the exercise of discretion in the applicant's favour. The applicant has standing and we will grant his request for a declaration to that effect. Costs will be in the cause.
ORDER
(1) The applicant's request is granted.
(2) It is declared that the applicant has standing to make the application under Section 18(1) of the Constitution.
(3) Costs are in the cause.
Judgment accordingly.
_________________________________________________________
Henaos Lawyers: Lawyers for the Applicant
Pacific Legal Group: Lawyers for the First Respondent
Solicitor-General: Lawyer for the Second Respondent
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URL: http://www.paclii.org/pg/cases/PGSC/2014/71.html