Application by Hon Douglas Tomuriesa [2024] PGSC 63; SC2594 (28 June 2024)

SC2594

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCCA NO 3 OF 2024

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

THE HONOURABLE DOUGLAS TOMURIESA MP
Applicant

Waigani: Salika CJ, Gavara-Nanu J,
Mogish J, Cannings J, Hartshorn J
2024: 27^th & 28^th June

CONSTITUTIONAL LAW – practice and procedure – application under Constitution, s 18(1) (original interpretative jurisdiction of the Supreme Court) – declarations and orders sought as to interpretation and application of provisions of the Constitution regarding a notice of motion of no confidence in the Prime Minister – whether applicant has standing to make application.

The applicant filed an application in the Supreme Court under s 18(1) of the Constitution seeking 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 that he submitted to the Speaker of Parliament on 29 May 2024, which was not cleared by the Private Business Committee for tabling; instead the Parliament adjourned to 3 September 2024. The applicant requested the Court to declare that he has standing to make the application. The request was opposed by both interveners to the application, the Speaker and the Attorney-General, on various grounds, including that the applicant does not have a sufficient interest in the matter and that the application fails to raise significant constitutional issues and that the applicant is a mere busybody engaged in litigation for improper motives.

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) The criteria in the Somare rules as to standing were satisfied by the applicant.

(3) The applicant’s request for a declaration that he has standing was granted.

Cases Cited

Application by Belden Norman Namah, in his Capacity as Leader of the Opposition (2020) SC1932
Application by Hon Don Pomb Polye MP, Leader of the Opposition (2016) SC1547
Application by Ila Geno (2014) SC1313
Application by Justice Sir Bernard Sakora (2020) SC1980
Application by Sir Makena Geno (2015) SC1455
Namah v Kua [2014] 1 PNGLR 422
Namah v Pato [2014] 1 PNGLR 150
Polye v Zurenuoc (2016) SC2039
Re Petition of MT Somare [1981] PNGLR 265

Counsel

G J Sheppard & P Tabuchi, for the Applicant
K R Kawat, for the First Intervener, the Speaker of the National Parliament
D Mel & N Pilamb, for the Second Intervener, the Attorney-General

28^th June 2024

1. BY THE COURT: The Honourable Douglas Tomuriesa MP, who is the Leader of the Opposition, 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 and orders as to interpretation and application of provisions of the Constitution regarding a notice of motion of no confidence in the Prime Minister that he submitted to the Speaker of the National Parliament on 29 May 2024, which was not cleared by the Private Business Committee for tabling; instead the Parliament adjourned to 3 September 2024.

2. He wishes to argue that the actions of the Parliament were in breach of ss 111 (right to introduce bills etc), 135 (questions as to membership etc) and 145 (motions of no confidence) of the Constitution and that the Court should order under s 155(4) of the Constitution the Clerk of the Parliament to place the notice of motion of no confidence as the first item of business on the next sitting day of the Parliament and the Speaker to recall the Parliament within seven days for the motion of no confidence to be voted upon.

3. 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.

4. The applicant’s request for a declaration that he has standing is opposed by both interveners to the application, the Speaker and the Attorney-General, on various grounds, including that the applicant does not have a sufficient interest in the matter and that the application fails to raise significant constitutional issues and that the applicant is a mere busybody engaged in litigation for improper motives.

THE SOMARE RULES

5. It was affirmed by the Supreme Court in Namah v Pato [2014] 1 PNGLR 150 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 were 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.

6. That formulation by the Supreme Court in Namah v Pato [2014] 1 PNGLR 150 of the “Somare rules”, as they have come to be known, has been applied in numerous cases over the last ten years, including Application by Ila Geno (2014) SC1313, Namah v Kua [2014] 1 PNGLR 422, Application by Sir Makena Geno (2015) SC1455, Application by Hon Don Pomb Polye MP, Leader of the Opposition (2016) SC1547, Application by Belden Norman Namah, in his Capacity as Leader of the Opposition (2020) SC1932 and Application by Justice Sir Bernard Sakora (2020) SC1980.

7. We will therefore apply the Somare rules to the facts of this case.

APPLYING THE SOMARE RULES TO THIS CASE

(a) Sufficient interest?

8. The applicant is a citizen and 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.

9. The first intervener nevertheless submits that the applicant has no personal interest in the subject of the application and his rights are not directly affected. We find no merit in that submission.

10. The fact that the applicant is a citizen and Leader of the Opposition is enough to show the sufficiency of his interest in the subject of the application.

(b) Significant constitutional issues?

11. Both interveners have argued that the interpretation of the constitutional provisions on which the application is based have already been authoritatively settled in a previous case, Polye v Zurenuoc (2016) SC2039.

12. That case was similar to the present case in that the Leader of the Opposition claimed that the Private Business Committee of the Parliament failed to clear a notice of motion of no confidence in the Prime Minister and that the procedures of s 145 of the Constitution were breached. The Leader of the Opposition sought declarations as to the unconstitutionality of the actions of the Acting Speaker of the Parliament in failing to convene a meeting of the Parliament. The Supreme Court granted the declarations sought and ordered the Clerk of the Parliament to place the notice of motion of no confidence as the first item of business for the Parliament on its next sitting day and ordered the Speaker to recall the Parliament within five days of the order of the Court for the motion of no confidence to be voted on.

13. We consider that the fact that there has been a previous case interpreting the constitutional provisions on which the applicant relies does not lessen the seriousness of the constitutional issues he is proposing to raise, as it is the application of those provisions to the facts of the present case that make the constitutional issues significant.

14. The Court in Polye v Zurenuoc laid out the practical requirements of s 145 of the Constitution and held that they are mandatory. The applicant proposes to argue that those requirements were breached. He wants to argue that the Constitution has been breached. This is a serious allegation and it would appear, by simply noting the facts in Polye v Zurenuoc and their similarity to the alleged facts in the present case, that it is not a trivial or frivolous allegation.

15. Mr Mel, for the second intervener, also submitted that the application pleads irrelevant matters, such as s 22 of the Standing Orders of the National Parliament, which is not a Constitutional Law, and that the application is “plainly wrong” in some respects, such as by proposing that members of the Private Business Committee acted outside the powers and jurisdiction of s 135 of the Constitution.

16. Those submissions will become relevant if the application proceeds to trial. However, they are not relevant to the question of whether the applicant has standing.

17. Our assessment is that there are significant and legitimate constitutional issues raised by the application. The issues do not appear to be trivial or vexatious or hypothetical. The second requirement is satisfied.

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

18. Mr Kawat, for the first intervener, submitted that the applicant was not genuine in making his application as he and the Opposition members of Parliament had not exhausted the parliamentary processes for pursuing their grievances. Instead, their action (for which there is evidence in draft Hansard) in walking out of Parliament on 5 June 2024 demonstrated that they did not want to comply with parliamentary processes and that the applicant does not have a genuine concern for the subject matter of the application. Mr Kawat submitted that the applicant and the Opposition still have the opportunity to submit another notice of motion of no confidence and that the applicant only wants to run this case for political reasons.

19. We reject those submissions. The question of whether the applicant exhausted the parliamentary processes and the opportunity he has to submit another motion of no confidence are matters going to the merits of the application and whether he should be granted the relief that he seeks. They are not matters affecting his standing. They are not relevant for present purposes.

20. It may well be that the applicant wishes to run the case for “political reasons” but even if that is so, it can hardly be labelled, in a constitutional democracy, an improper motive.

21. 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.

22. 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)).

23. It is a legitimate role of the Leader of the Opposition to invoke the procedure in s 145 of the Constitution – which he claims has been breached – to impose accountability on the Prime Minister by promoting a motion of no confidence in the Prime Minister.

24. There is no evidence that the applicant’s motives are other than genuine. The third requirement is satisfied.

(d) Other ways of determining the issues?

25. There are perhaps other ways that the applicant could have agitated his grievances about the manner in which his notice of motion of no confidence was not progressed.

26. For example, 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

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

(a) the applicant is a citizen and is the holder of 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;

(c) he is not a mere busybody and he has no improper motive;

(d) though there are other ways in which the issues could be agitated, that is not a good reason to refuse his request.

28. All 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.

29. As the application was strongly opposed, costs will follow the event.

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 interveners shall pay the applicant’s costs of the application for the request for a declaration as to standing, on a party-party basis, which shall, if not agreed, be taxed.

Judgment accordingly.

________________________________________________________________
Young & Williams Lawyers: Lawyers for the Applicant
Kawat Lawyers: Lawyers for the First Intervener
Mel & Hennry Lawyers: Lawyers for the Second Intervener