Application by Hon. Powes Parkop, Governor of National Capital District [2022] PGSC 103; SC2286 (16 August 2022)

SC2286

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCCOS 1 OF 2022

APPLICATION PURSUANT TO
CONSTITUTION SECTION 18(1)

APPLICATION BY
HON. POWES PARKOP, GOVERNOR
OF NATIONAL CAPITAL DISTRICT

Waigani: Batari J., Mogish J., Hartshorn J.
2022: 10^th & 16^th August

SUPREME COURT - PRACTICE AND PROCEDURE – standing - Request for a declaration as to standing – whether applicant has standing to make substantive application pursuant to s18(1) Constitution - Applicant submits that he has standing as he has sufficient interest by virtue of being an automatic citizen of Papua New Guinea, a Member of Parliament and the Governor of NCD - question of whether a substantive applicant under s. 18(1) 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] PNGR 265 – applicant has standing to make an application under s18(1) Constitution

Cases Cited:
Re Petition of MT Somare [1981] PNGLR 265
Namah v. Pato (2014) SC1304
Application by Ila Geno (2014) SC1313
Namah v. Kua (2014) SC1342
Application by Sir Makena Geno (2015) SC1455
Morauta v. Pala (2016) SC1529
Polye v. O’Neill (2016) SC1547
Application by Justice Sir Bernard Sakora (2020) SC1980
Application by Hon. Powes Parkop (2022) SC2215

Counsel:

Ms. G. Sikre, for the Applicant
Mr. T. Tanuvasa, for the First Intervener

16^th August, 2022

1. BY THE COURT: This is a decision on a request by the applicant, Hon. Powes Parkop, Governor of National Capital District (NCD) (Applicant), for this Court to declare that he has standing to make this substantive application (Application) pursuant to s. 18(1) Constitution. The first intervener, the Attorney General, the only other party represented at the hearing, opposes the request and submits that the Applicant does not have the requisite standing.

Application

2. The Applicant requests the Supreme Court to make certain declarations on: the interpretation of s. 4 Constitution and ss. 4(1), 10, 17 and 22 Organic Law on Provincial and Local Level Government (Organic Law), whether the National Capital District Commission Act 2001 (NCDC Act) continues to have any legal effect or application to the National Capital District and whether s. 1 National Capital District Commission (Amendment) Act 2021 (Amendment Act) is unconstitutional.

Facts

3. In Application by Hon. Powes Parkop (2022) SC2215, Logan J concisely set out the facts of this Application. We do no more than reproduce those facts:

“Prior to October 2021, the National Capital District (NCD) was administered pursuant to National Capital District Commission Act 2001 (NCDC Act). That act created a governing body, called the Commission. Section 5 of the NCDC Act provides for the membership of the Commission.

On 19 October 2021, His Excellency the Governor-General, acting on advice, proclaimed that the Organic Law on Provincial and Local Level Government 1995 [sic] (Organic Law) came into operation in relation to the NCD. If valid, the effect of the Governor-General’s proclamation was to transform the NCD into a province. In turn, the NCD, prima facie, became subject to the provisions of the Organic Law stipulating the governance of provenances.

Following the Governor-General’s proclamation, the Governor for Central Province, the Honourable Robert Agarobe MP submitted a private members’ bill to the Parliamentary Committee on Private Business. That bill sought to make various amendments to the NCDC Act. These included amending a provision of the NCDC Act stipulating the criteria for membership of the Commission. The criteria provided for in the bill were different to, and incompatible with, the provisions of the Organic Law.

The bill was ultimately passed by Parliament in the form of the National Capital District Commission (Amending) Act 2021 (Amending Act). The Amending Act came into force on 13 January 2022, following its certification by the Acting Speaker of the Parliament.”

Request for declaration
4. The Applicant submits that he has standing as he has sufficient interest by virtue of being an automatic citizen of Papua New Guinea, a Member of Parliament and the Governor of NCD. He is not a mere busybody and has raised significant constitutional issues.

5. The first intervener only takes issue with the Applicant’s assertion that he raises significant constitutional issues. The first intervener submits as to grounds one and two of the application that the proclamation concerning the Organic Law is inconsequential as it only fixed the date when the Organic Law came into operation for the NCD. The proclamation does not have the power to suspend the operation of an Act of Parliament. Secondly, the first intervener submits as to ground three, that the Applicant does not plead the relevant provision of the Amendment Act which allegedly contravenes a Constitutional Law but refers to s. 1 NCDC Act which has no correlation with ss. 10, 17 and 22 Constitution as pleaded by the Applicant.

Law

6. The question of whether a substantive applicant under s. 18(1) 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] PNGR 265 (see also Namah v. Pato (2014) SC1304; Application by Ila Geno (2014) SC1313; Namah v. Kua (2014) SC1342; Application by Sir Makena Geno (2015) SC1455; Morauta v. Pala (2016) SC1529; Polye v. O’Neill (2016) SC1547 and Application by Justice Sir Bernard Sakora (2020) SC1980).

7. Those rules may 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.

8. We are satisfied from the evidence that the Applicant is a citizen who has a genuine concern for the subject matter of the Application and is the holder of a public office - Member of Parliament and Governor of NCD - the functions of which relate to the subject matter of the Application. Further, there is no evidence to the effect that the Applicant is meddling in other peoples affairs or is engaged in this litigation for some improper motive. He does not qualify therefore as a busybody, mere or otherwise.

9. As to whether the Applicant raises significant constitutional issues, the first intervener’s opposition on this point is premised on the declarations, which he refers to as grounds, which are sought by the Applicant in the Application concerning the proper interpretation or application or construction of s. 4 Constitution and s. 4(1) and 10, 17 and 22 Organic Law.

10. From a perusal of the third declaration sought in the Application, it is apparent that the wrong statute is referred to by a typographical error.

11. In considering whether significant constitutional issues are raised, the rules of the underlying law as summarised, refer to whether the substantive application raises significant constitutional issues, as distinct from being confined to the declarations or grounds sought in the substantive application. In our view, all of a substantive application should be considered in determining the question of standing and not merely a part.

12. Further, as occurred in Application by Sir Makeno Geno (supra) at [13], we are of the view that the Attorney General’s submissions have conflated and confused the question of whether the Applicant has standing with the merits of the Application.

13. We are satisfied that the Applicant has raised in the Application the question of whether the Amendment Act is valid given that the Organic Law, a Constitutional Law (sch 1.2(1)) Constitution, regulates the constitution, powers and functions of a Provincial Government subject to certain exceptions. Thus, a significant constitutional issue is raised.

14. In conclusion, as the Applicant has met the three main rules formulated in Re Petition MT Somare (supra), we are satisfied that he has standing to make the Application. A declaration to that effect should be granted.

Orders

15. The Court orders that:

a) The Applicant’s request is granted.

b) It is declared that the Applicant has standing to make this application pursuant to s. 18(1) Constitution.

c) Costs are in the cause.
__________________________________________________________________
Mawa Lawyers: Lawyers for the Applicant
Solicitor-General: Lawyers for the First Intervener
Kessadale Lawyers: Lawyers for the Second Intervener