Application by Namah [2020] PGSC 18; SC1932 (23 March 2020)

SC1932

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCC (OS) NO 4 OF 2019

APPLICATION PURSUANT TO CONSTITUTION, SECTION 18(1)

BY THE HONOURABLE BELDEN NORMAN NAMAH MP,
IN HIS CAPACITY AS LEADER OF THE OPPOSITION

Waigani: Cannings J, Dingake J, Berrigan J
2020: 19^th, 23^rd March

CONSTITUTIONAL LAW –application under Constitution, s 18(1) (original interpretative jurisdiction of the Supreme Court) – declarations sought as to interpretation and application of provisions of the Constitution regarding appointment of Prime Minister – whether applicant has standing to make application.

The applicant applied to the Supreme Court under s 18(1) of the Constitution for declarations as to the constitutionality of the appointment on 30 May 2019 of the Prime Minister and whether the appointment was in accordance with a valid decision of the Parliament. He contended that the decision followed an unlawful withdrawal of nomination by a candidate for the position of Prime Minister, an unlawful acceptance by the Speaker of withdrawal of the nomination, and therefore an unconstitutionalelection in the Parliament. The Supreme Court Rules 2012 require that before an application under s 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 interveners in the application, the Prime Minister and the Minister for Justice, on various grounds including that the applicant lacks a sufficient interest in the subject matter of the application and that the application does not raise significant constitutional issues.

Held:

(1) The question of whether an applicant under s 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.

(2) Applying the Somare rules to the facts of this case:

• (a) the applicant is a citizen with a genuine political concern for the subject matter and is now the Leader of the Opposition, a public office the functions of which relate to the subject matter of the application, he therefore has a sufficient interest;
• (b) he wishes to raise significant constitutional issues in that although it is arguable that the issues do not allege breaches of any discrete constitutional provisions and concern the internal procedures of the Parliament and are non-justiciable under s 134 of the Constitution, the appointment of the Prime Minister is made under s 142 of the Constitution and a challenge to that decision intrinsically raises significant issues, which are not trivial, vexatious, hypothetical or irrelevant;
• (c) he is not a mere busybody and appears to have no improper motive; and
• (d) though the issues could have been raised in other ways, that is not a good reason to refuse his request.
  

(3) The applicant’s 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
Application by Sir Makena Geno (2015) SC1455
East Sepik Provincial Executive v Marat [2011] 2 PNGLR 126
Haiveta v Wingti (No 3) [1994] PNGLR 197
James Eki Mopio v The Speaker [1977] PNGLR 420
Morauta v Pala (2016) SC1529
Namah v Kua (2014) SC1342
Namah v Pato (2014) SC1304
Polye v O’Neill (2016) SC1547
Re Petition of MT Somare [1981] PNGLR 265
Supreme Court Reference Nos 1 & 2 of 2012 1 [2012] PNGLR 74

REQUEST

This was a request for a declaration that an applicant under s 18(1) of the Constitution has standing.

Counsel

G J Sheppard & P Tabuchi, for the Applicant
M Nale & A Serowa, for the First Intervener
N Yalo, for the Second Intervener

23^rd March, 2020

1. BY THE COURT: The Leader of the Opposition, the Honourable Belden Norman Namah MP, requests that the Supreme Court declare that he has standing to make an application to the Court under s 18(1) of the Constitution, seeking declarations as to the constitutionality of the appointment on 30 May 2019 of the Prime Minister, the Honourable James Marape MP. He contends that the decision of the Parliament followed:

• an unconstitutional, invalid and unlawful withdrawal of nomination by a candidate for the position of Prime Minister, the Honourable Peter O’Neill MP;
  
• an unconstitutional, invalid and unlawful acceptance by the Speaker of the National Parliament, the Honourable Job Pomat MP, of withdrawal of the nomination, and
  
• an unconstitutional, invalid and unlawful election in the Parliament, in which the only two candidates were Mr Marape and the Honourable Sir Mekere Morauta MP.
  

2. The applicant contends that the process of deciding on who should be the next Prime Minister, following Mr O’Neill’s resignation from that office on 29 May 2019, miscarried due to the failure to have proper regard to the following provisions of the Constitution:

• Section 11 (Constitution etc as supreme law);
• Section 32 (right to freedom);
• Section 41 (proscribed acts);
• Section 50 (right to vote and stand for public office);
• Section 59 (principles of natural justice);
• Section 108 (functions of the Speaker and Deputy Speaker);
• Section 114 (voting in the Parliament);
• Section 142 (the Prime Minister); and
• Section 158(2) (exercise of the judicial power).
  

3. Order 4, Rule 17 of the Supreme Court Rules 2012 requires that before an application under s 18(1) of the Constitution can be heard, the Court must declare that the applicant has standing. The applicant’s request for a declaration as to standing is opposed by the interveners in the application:

• the first intervener, the Prime Minister, the Honourable James Marape MP; and
  
• the second intervener, the Deputy Prime Minister, Minister for Justice and Attorney-General, the Honourable Davis Steven MP.
  

4. They argue amongst other things that the applicant lacks a sufficient interest in the subject matter of the application and that the application does not raise significant constitutional issues.

METHODOLOGY

5. It was affirmed by the Supreme Court in Namah v Pato (2014) SC1304 (and followed in Application by Ila Geno (2014) SC1313, Namah v Kua (2014) SC1342, Application by Sir Makena Geno (2015) SC1455, Morauta v Pala (2016) SC1529 and Polye v O’Neill (2016) SC1547) that the question of whether an applicant under s 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, which can be summarised 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, 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.

APPLYING THE SOMARE RULES TO THIS CASE

(a) Sufficient interest?

6. The interveners argue that the applicant has no special interest in the appointment of the Prime Minister as none of his personal rights or interests were affected by the decision of the Parliament to elect Mr Marape on 30 May 2019.

7. However, it is not necessary for the applicant to prove that his personal interests were directly affected. We are satisfied that he has a sufficient interest in the subject matter of the application in two respects. First, he is a citizen and a member of the National Parliament. He therefore has a legitimate political interest and a genuine concern in questioning the constitutionality of appointment of the Prime Minister.

8. Secondly, he is presently the Leader of the Opposition. Though the question whether he held that office on the day he filed the application (23 September 2019) and, if he did not, whether that affects the competency of the application (which arises in a notice of objection to competency filed in these proceedings) is yet to be heard and determined, it is uncontentious that the applicant is now the Leader of the Opposition. He has held that office for a continuous period since at least 8 October 2019. It is a function of the Leader of the Opposition to hold the Government of the day to account. That includesbeing able to test the constitutionality of appointment of the Prime Minister.

9. We are satisfied that the applicant has a sufficient interest in the subject matter of the application.

(b) Significant constitutional issues?

10. The interveners argue that the issues that the applicant proposes to raiseare not significant constitutional issues as: (i) the issues have been vaguely pleaded; (ii) the issues are not constitutional in nature; and (iii) the issues are not justiciable and therefore are insignificant.

11. As to (i), the interveners point to the Supreme Court’s decision in Morauta v Pala (2016) SC1529, in which Sir Mekere Morauta, who filed a s 18(1) application in his capacity as chairman of the board of directors of PNG Sustainable Development Program Ltd, was ruled to lack standing to challenge the constitutionality of the Mining (Ok Tedi Tenth Supplemental Agreement) Act 2013. One of the considerations the Court (Kandakasi J, Yagi J, Sawong J) took into account in determining that significant constitutional issues were not raised was the applicant’s failure to adhere to the manner and form requirements of the Supreme Court Rules. A s 18(1) application is to be filed in form 1, which contains a requirement that the applicant “requests the Court to declare that the proper interpretation of Section ... of (insert the Constitution and relevant section or name of a Constitutional Law and section) is”. The Court held:

By this prescription, an applicant in our view is required to specify the constitutional provision and in particular state the kind of declaration as to “the proper interpretation or application of” a specific constitutional provision that is being sought in the application. In other words, the Rules of the Court require an applicant under s 18(1) of the Constitution to not only state the constitutional provision that requires interpretation and or application but also and more importantly state the way in which it should be properly interpreted and or applied. If more than one constitutional provision requires proper interpretation and or application, each of them have to be clearly set out in the application itself first.

12. The interveners argue that paragraph 3 of the present application fails to meet those requirements as it simply lists the relevant provisions of the Constitution and pleads without explaining how each provision operates that the “proper interpretation or application” of those provisions is that amongst other thingsthe election of Mr Marape as Prime Minister is “unconstitutional, invalid and unlawful”.

13. As to (ii), the interveners argue that the applicant has failed to allege that any particular constitutional provision was breached in the decision-making of the Parliament, which led to Mr Marape’s appointment. They argue that the applicant is apparently alleging a breach of the Standing Orders of the Parliament was committed when Mr O’Neill unilaterally withdrew acceptance of his nomination and when the Speaker unilaterally sanctioned the withdrawal and allowed the election to proceed on 30 May 2019 with only Mr Marape and Sir Mekere as candidates. However, the Standing Orders are not Constitutional Laws, therefore it is argued that there are no constitutional issues involved.

14. As to (iii), the interveners argue that even if the issues that the applicant seeks to agitate are regarded as constitutional in nature, they are non-justiciable perforce of 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.

15. As to argument (i), we consider that although the application could have more directly linked each of the constitutional provisions to a particular consequence, the propositions that the applicant proposes to advance at the hearing of the substantive application are sufficiently clear. The application meets the requirements of form 1 of the Rules as clarified in Morauta v Pala (2016) SC1529.

16. As to (ii) and (iii), it is arguable that the application fails to allege breaches of any discrete constitutional provisions and that it concerns the internal procedures of the Parliament, which are non-justiciable under s 134 of the Constitution. However, it is also arguable that the appointment of Prime Minister Marape was made in accordance with a decision of the Parliament that was constitutionally flawed.

17. As to the proposition that the internal procedures of the Parliament are non-justiciable, that proposition found favour in the earliest case that dealt with s 134: James Eki Mopio v The Speaker [1977] PNGLR 420, which incidentally involved a challenge to the constitutionality of the appointment of the Prime Minister and whether s 142 of the Constitution had been adhered to. However, this is not an absolute principle of law, as is borne out by at least three Supreme Court cases in which the decision of the Parliament as to election of a Prime Minister was held to be unconstitutional: Haiveta v Wingti (No 3) [1994] PNGLR 197, East Sepik Provincial Executive v Marat [2011] 2 PNGLR 126 and Supreme Court Reference Nos 1 & 2 of 2012 [2012] 1 PNGLR 74.

18. Though the interveners have raised valid issues as to the prospects of the application succeeding, the appointment of the Prime Minister is made under s 142 of the Constitution and a challenge to that decision intrinsically raises serious issues. Those issues cannot be properly regarded at this stage of theproceedings as trivial, vexatious, hypothetical or irrelevant. We are satisfied that the application raises significant constitutional issues.

(c) Is the applicant a busybody or acting for an improper motive?

19. 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 was at least, at the time of filing the application, a member of the National Parliament. He is also presently the Leader of the Opposition, an office which is specifically recognised in the Constitution (ss 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 constitutionality of the appointment of the Prime Minister.

(d) Other ways of determining the issues?

20. There are a number of authorities referred to in s 19(3) of the Constitution which could have decided to make a special reference to the Supreme Court under s 19(1) of the questions of constitutional interpretation and application that the applicant wants to raise. The fact that there is no evidence that the applicant approached any of these authorities to request that a special reference be filed, is of no consequence.

CONCLUSION

21. Applying the Somare rules to the facts of this case shows that:

(a) the applicant has a sufficient interest;

(b) he wishes to raise significant constitutional issues;

(c) he is not a mere busybody and appears to have no improper motive; and

(d) though the issues could have been raised in other ways, that is not a good reason to refuse his request.

22. All criteria support the exercise of discretion in the applicant’s favour. We will grant the applicant’s request for a declaration that he has standing. As all parties are public office-holders, they will bear their own costs.

ORDER

(1) The applicant’s request is granted.

(2) It is declared that the applicant has standing to make the application under s 18(1) of the Constitution.

(3) The parties will bear their own costs of the application.

Judgment accordingly.
____________________________________________________________
Young & Williams Lawyers: Lawyers for the Applicant
Jema Lawyers: Lawyers for the First Intervener
Nemo Yalo Lawyers: Lawyers for the Second Intervener