Application by Hon James Nomane MP, Member for Chuave Open [2025] PGSC 130; SC2834 (23 December 2025)

SC2834

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCCA NO 13 OF 2025

APPLICATION PURSUANT TO CONSTITUTION, SECTION 18(1)

APPLICATION BY THE HONOURABLE JAMES NOMANE MP,
MEMBER FOR CHUAVE OPEN
Applicant

WAIGANI: KANDAKASI ACJ, CANNINGS J,
MANUHU J, DAVID J, HARTSHORN J

15, 23 DECEMBER 2025

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 was submitted to the Speaker of Parliament on 29 October 2025. The motion was rejected by the Private Business Committee of the Parliament on the ground that it was prohibited by s 145(5) of the Constitution, which provides that a motion of no confidence in the Prime Minister shall not be moved within 18 months after the date on which a motion of no confidence in the Prime Minister is unsuccessful. A previous motion of no confidence in the Prime Minister was unsuccessful on 15 April 2025. The applicant argues that s 145(5) does not apply to that unsuccessful motion of no confidence as that motion had been submitted on 27 November 2024, and s 145(5) was made and commenced operation on 17 March 2025 and does not have retrospective effect. He 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 the ground that the application fails to raise significant constitutional issues. The Attorney-General also objected to the competency of the application and his objection was supported by the Speaker. The Court ruled on the applicant’s request for a declaration that he had standing.

Held:

(1) The question of whether an applicant under s 18(1) of the Constitution has standing is a matter of discretion to be exercised in accordance with the rules of the underlying law formulated in Re Petition of MT Somare [1981] PNGLR 265.

(2) One of the essential criteria in the Somare rules as to standing is that an applicant is raising significant constitutional issues.

(3) That criterion was not satisfied as there was no reasonable argument having any prospect of success that s 145(5) of the Constitution did not prohibit the moving of the motion of no confidence of 29 October 2025. Section 145(5) clearly operates to prohibit any notice of motion in the Prime Minister being moved for 18 months after 15 April 2025.

(4) The application does not raise any serious constitutional issues. The applicant’s request for a declaration as to his standing was refused.

(5) It was unnecessary to deliberate on the objection to competency. The proceedings were dismissed.

Cases cited
Application by Hon Belden Norman Namah, Leader of the Opposition (2020) SC1932
Application by Hon Allan Bird MP, Member for East Sepik Provincial (2025) SC2816
Application by Hon Don Pomb Polye MP, Leader of the Opposition (2016) SC1547
Application by Hon Douglas Tomuriesa (2024) SC2594
Application by Hon James Nomane MP, Deputy Leader of the Opposition (2025) SC2721
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
P Mawa for the applicant
S Ranewa for the first intervener, the Speaker of the National Parliament
L A Jurth & D Mel for the second intervener, the Attorney-General

1. BY THE COURT: The Honourable James Nomane MP, member for Chuave Open, requests the Supreme Court to 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 was submitted to the Speaker of the National Parliament on 29 October 2025. That motion nominated the Honourable Peter O’Neill MP, the member for Ialibu-Pangia Open, as the next Prime Minister.

2. The motion was rejected by the Private Business Committee of the Parliament on the ground that it was prohibited by s 145(5) of the Constitution. Section 145(5) provides that a motion of no confidence in the Prime Minister shall not be moved within 18 months after the date on which a motion of no confidence in the Prime Minister is unsuccessful. A previous motion of no confidence in the Prime Minister was unsuccessful on 15 April 2025.

3. The applicant argues that s 145(5) does not apply to that unsuccessful motion of no confidence as that motion had been submitted on 27 November 2024, and s 145(5) was made and commenced operation on 17 March 2025 and does not have retrospective effect.

4. The Supreme Court Rules 2012 require that the Court declares that an applicant has standing, before an application under s 18(1) of the Constitution can be heard.

5. The applicant’s request for a declaration that he has standing is opposed by both interveners on the ground that the application fails to raise significant constitutional issues. The Attorney-General also objects to the competency of the application, and his objection is supported by the Speaker.

We deal first with the issue of standing.

CRITERIA TO APPLY WHEN DECIDING THE ISSUE OF STANDING

6. 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 of discretion 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.

7. 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 subsequent cases, 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, Leader of the Opposition (2020) SC1932, Application by Justice Sir Bernard Sakora (2020) SC1980 and Application by Hon Douglas Tomuriesa (2024) SC2594.

8. The interveners concede, and we agree, that the criteria (a), (c) and (d) are satisfied. They argue, however, that (b) is not satisfied and therefore the applicant’s request for a declaration that he has standing should be refused.

IS THE APPLICANT RAISING SIGNIFICANT CONSTITUTIONAL ISSUES?

9. The applicant contends that he is raising an important issue of interpretation and application of several provisions of the Constitution, especially s 145(5), which was relied on by the Private Business Committee to summarily dispose of the motion of no confidence submitted on 29 October 2025.

10. To put the applicant’s argument in context we cite the whole of s 145 (motions of no confidence), which states:

(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 month’s week's notice, signed by a number of members of the Parliament being not less than one-fifth 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 18 months commencing on the date of the appointment of the Prime Minister.

(5) Where a motion of no confidence in the Prime Minister is unsuccessful, a subsequent motion of no confidence in the Prime Minister or the Ministry after the unsuccessful 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.

11. Subsection (5) was added to s 145 by Constitutional Amendment No 48 (Motions of No Confidence) Law 2025. The amendment was made by the Parliament and came into operation on 17 March 2025. The constitutional validity of s 145(5) was recently affirmed by the Supreme Court in Application by Hon Allan Bird MP, Member for East Sepik Provincial (2025) SC2816.

12. Section 145(5) is relied on by the interveners to argue that the application has no chance of succeeding. They point to the motion of no confidence in the Prime Minister that was defeated on 15 April 2025. The motion of no confidence that is at the centre of the present case was submitted on 29 October 2025, only six months and two weeks after the unsuccessful motion of 15 April 2025.

13. The applicant insists that s 145(5) does not apply to the motion of no confidence defeated on 15 April 2025. Mr Mawa for the applicant submitted that a motion of no confidence is a process, not a standalone event.

14. The process began in respect of the motion of no confidence defeated on 15 April 2025 with submission of notice of that motion to the Speaker on 27 November 2024. That motion nominated Sir Peter Ipatas, the member for Enga Provincial, as the next Prime Minister. That motion was rejected by the Private Business Committee on 27 November 2024 on the ground that it was the same in substance as a question that had been resolved in the previous 12 months, and s 165 of the Standing Orders of the National Parliament allows the Speaker to disallow it. Section 145(5) of the Constitution was not relied on as at that time, November 2024, it had not commenced operation.

15. The present applicant, Mr Nomane, who was then the Deputy Leader of the Opposition, applied to the Supreme Court under s 18(1) of the Constitution for declarations and orders that challenged the summary rejection of the 27 November 2024 motion of no confidence. He succeeded first in obtaining a declaration from the Court that he had standing to move the application. Then he succeeded in obtaining the substantive relief that he sought (Application by Hon James Nomane MP, Deputy Leader of the Opposition (2025) SC2721).

16. The Court held that:

• the period within which a motion of no confidence in the Prime Minister can be made and other requirements for moving a motion of no confidence are exclusively provided by s 145 of the Constitution;
  
• s 165 of the Standing Orders provides for an unauthorised and unreasonable restriction on the entitlement of a member of the Parliament to bring a motion of no confidence in the Prime Minister;
  
• s 165 of the Standing Orders is, in so far as it operates in respect of a motion of no confidence in the Prime Minister, inconsistent with ss 50(1)(e), 110(1) and 145 of the Constitution and is invalid, ineffective and unconstitutional;
  
• the decision of 27 November 2024 of the Private Business Committee to disallow the motion of no confidence was unconstitutional.
  

17. The Court ordered the Private Business Committee to deliver the motion of no confidence of 27 November 2024 to the Clerk of the Parliament, who was required to list it on the notice paper forthwith. The Court also ordered the Speaker of the National Parliament to take all steps necessary to recall the Parliament and to facilitate debate of the motion of no confidence of 27 November 2024.

18. Those orders were complied with. The motion of no confidence of 27 November 2024 was debated and voted on and it was unsuccessful, on 15 April 2025.

19. Mr Mawa’s point is that the process of determining that motion of no confidence commenced on 27 November 2024 and was not completed until 15 April 2025. Because the process began prior to the date of commencement of operation of s 145(5) – 17 March 2025 – and because s 145(5) is not expressed to operate retrospectively, s 145(5) does not apply to it.

20. The applicant’s position is that the first test of s 145(5) will not take place unless the motion of no confidence of 29 October 2025, which nominated Hon Peter O’Neill MP as next Prime Minister, is voted on and is unsuccessful.

21. We agree with the description of a motion of no confidence as a process, which has a beginning and an end. We agree that that process took longer to complete than it should have in the case of the 27 November 2024 motion of no confidence due to the initial, unconstitutional rejection of the motion by the Private Business Committee and the application to the Supreme Court.

22. We note also that the motion that was defeated on 15 April 2025 would in all likelihood, were it not for its unconstitutional rejection, have been debated and voted on before commencement of operation of s 145(5) of the Constitution on 17 March 2025. And if that had happened, there would have been a strong argument to say that s 145(5) would not apply, as s 145(5) is not expressed to operate retrospectively.

23. However, that is not what happened and we must apply the law to the facts. The fact is that on 15 April 2025 the motion of no confidence in the Prime Minister was unsuccessful. It is the date on which the motion is unsuccessful that it is critical to determination of the 18-month ‘grace period’ created by s 145(5).

24. Section 145(5) states:

Where a motion of no confidence in the Prime Minister is unsuccessful, a subsequent motion of no confidence in the Prime Minister or the Ministry after the unsuccessful 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 [emphasis added].

25. Applying s 145(5) to the facts, a motion of no confidence in the Prime Minister cannot be moved for a period of 18 months after 15 April 2025, ie until 15 October 2026.

26. It is irrelevant that the process of determination of the motion of no confidence defeated on 15 April 2025 commenced on 27 November 2024, which was before s 145(5) commenced operation. It is irrelevant that the process was delayed unconstitutionally. It is irrelevant that s 145(5) does not apply retrospectively.

27. Section 145(5) applies prospectively and it prohibits the moving of a motion of no confidence in the Prime Minister for a period of 18 months after 15 April 2025.

28. All arguments of the applicant to the contrary are doomed to failure. There is no reasonable argument having any prospect of success that s 145(5) of the Constitution does not presently prohibit the moving of the motion of no confidence of 29 October 2025. We are driven to the conclusion that the applicant is not raising any significant constitutional issues.

CONCLUSION

29. As the applicant is not raising any significant constitutional issues worthy of consideration by the Supreme Court, his request for a declaration as to his standing must be refused.

30. It is unnecessary to deliberate on the objection to competency. The proceedings will be dismissed.

31. As to costs, all parties to the proceedings are elected office-holders. We see no evidence of the proceedings being commenced in bad faith. We have decided that the parties should bear their own costs.

ORDER

(1) The applicant’s request for a declaration as to standing is refused.

(2) The proceedings are dismissed.

(3) The parties shall bear their own costs of the proceedings.

________________________________________________________________
Lawyers for the applicant : Mawa Lawyers
Lawyers for the first intervener : Kawat Lawyers
Lawyers for the second intervener : Mel & Hennry Lawyers