Application pursuant to Constitution, Section 18(1); Application by Ila Geno (2014) SC1313

• Jurisdiction: Papua New Guinea
• Judge: Salika DCJ, Sakora J, Cannings J, Hartshorn J, Poole J
• Judgment Date: 28 February 2014
• Citation: (2014) SC1313
• Docket Number: SCA NO 177 OF 2013
• Court: Supreme Court
• Year: 2014
• Judgement Number: SC1313

Full Title: SCA NO 177 OF 2013; Application pursuant to Constitution, Section 18(1); Application by Ila Geno (2014) SC1313

Supreme Court: Salika DCJ, Sakora J, Cannings J, Hartshorn J, Poole J

Judgment Delivered: 28 February 2014

SC1313

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 177 OF 2013

APPLICATION PURSUANT TO CONSTITUTION, SECTION 18(1)

APPLICATION BY ILA GENO

Waigani: Salika DCJ, Sakora J,

Cannings J, Hartshorn J, Poole J

2014: 24, 28 February

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 motions of no confidence in the Prime Minister: Section 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. The first amendment 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. He proposed to argue that both 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, and based his request on the facts, amongst others, that he is a citizen, who had on a previous occasion been declared by the Supreme Court to have standing to bring proceedings under Section 18(1) of the Constitution, and therefore he has a sufficient interest in the matter.

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).

(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 has a sufficient interest as he is a citizen who has a genuine concern for 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;

(d) though there is at least one other way of having the constitutional issues determined by the Supreme Court (a special reference under Section 19 of the Constitution) it is relevant that the applicant has approached a number of authorities entitled by Section 19(3) to make an application under Section 19(1) and these authorities have not demonstrated any interest in making such an application.

(4) The applicant therefore has standing to make the application. His request for a declaration that he has standing is granted.

Cases cited

The following cases are cited in the judgment:

Belden Norman Namah MP v Rimbink Pato MP, National Executive Council & The State (2014) SC1304

New Britain Oil Palm Ltd v Vitus Sukuramu (2008) SC946

Re Election of Governor-General (No 1) (2003) SC721

Re Petition of MT Somare [1981] PNGLR 265

Special Reference by Fly River Provincial Executive, re OLIPAC (2010) SC1057

Special Reference by Morobe Provincial Executive (2010) SC1089

Special Reference pursuant to Constitution, Section 19; Reference by the East Sepik Provincial Executive (2011) SC1133

Supreme Court Reference No 1 of 1992, Special Reference by the Ombudsman Commission [1992] PNGLR 73

Supreme Court Reference No 3 of 1999; Special Reference under Section 19 of the Constitution by the Ombudsman Commission re Sitting Days of the National Parliament (1999) SC628

Vitus Sukuramu v New Britain Oil Palm Ltd (2007) N3124

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

N Yalo, for the applicant

28th February, 2014

1. BY THE COURT: Ila Geno 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 has already made the application under Section 18(1). It was filed on 3 December 2013. He needs a declaration as to his standing before he can have his application heard. The notion of ‘standing’ or locus standi refers to the legally recognisable right or capacity of a person to commence proceedings.

3. This Court on 9 December 2013 directed that the application be served on the Prime Minister Hon Peter O’Neill MP, the Speaker of the National Parliament, Hon Theo Zurenuoc MP and the Chairman of the Constitutional and Law Reform Commission, Hon Benjamin Poponawa MP. That direction was complied with by the applicant but none of the recipients has filed an appearance under Order 11, Rule 2 of the Supreme Court Rules 2012. No other person has indicated their desire to be heard on the question of whether the applicant should be declared to have standing.

4. No person has therefore objected to the applicant being declared to have standing. This does not, however, mean that the applicant is entitled to be granted standing as he still needs to satisfy the Court that his request should be acceded to.

THE APPLICATION

5. The applicant seeks 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.

6. The first amendment 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.

7. 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...