Application pursuant to Constitution, Section 18(1) Belden Norman Namah MP v Rimbink Pato MP, Minister For Foreign Affairs & Immigration and The National Executive Council and The Independent State of Papua New Guinea (2014) SC1304

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Judge: Waigani: Salika DCJ, Sakora J, Kandakasi J, Cannings J, Poole J
• Judgment Date: 29 January 2014
• Citation: (2014) SC1304
• Judgment Number: SC1304
• Year: 2014
• Docket Number: SCA NO 84 OF 2013

Full Title: SCA NO 84 OF 2013; Application pursuant to Constitution, Section 18(1) Belden Norman Namah MP v Rimbink Pato MP, Minister For Foreign Affairs & Immigration and The National Executive Council and The Independent State of Papua New Guinea (2014) SC1304

Supreme Court: Waigani: Salika DCJ, Sakora J, Kandakasi J, Cannings J, Poole J

Judgment Delivered: 29 January 2014

SC1304

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 84 OF 2013

APPLICATION PURSUANT TO CONSTITUTION, SECTION 18(1)

BELDEN NORMAN NAMAH MP

Applicant

V

RIMBINK PATO MP,

MINISTER FOR FOREIGN AFFAIRS & IMMIGRATION

First Respondent

THE NATIONAL EXECUTIVE COUNCIL

Second Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Respondent

Waigani: Salika DCJ, Sakora J,

Kandakasi J, Cannings J, Poole J

2013: 19 December,

2014: 29 January

CONSTITUTIONAL LAW – practice and procedure – application under Constitution, Section 18(1) (original interpretative jurisdiction of the Supreme Court) – application by Leader of the Opposition – declaration sought as to interpretation and application of Constitution, Section 42 (liberty of the person) – question of locus standi: whether applicant has standing to make application.

The Leader of the Opposition filed an application in the Supreme Court under Section 18(1) of the Constitution seeking declarations as to the constitutionality of arrangements, including memoranda of understanding, between the governments of Australia and Papua New Guinea as to the transfer of persons seeking asylum in Australia, from Australia to Papua New Guinea, for processing. He proposed to argue that those arrangements are unconstitutional as they are contrary to the rights of the transferees to personal liberty under Section 42(1) of the Constitution. 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 fact that he is a citizen, a member of the Parliament and the Leader of the Opposition and therefore he has a sufficient interest in the matter in light of the decision of the Supreme Court in Re Petition of MT Somare [1981] PNGLR 265. The respondents opposed the request on the grounds that: the principles in Somare only apply in respect of a challenge to the exercise of the legislative power of the Parliament; there was no evidence that the applicant had approached any person or authority that would have standing to seek the sort of relief that he seeks, before resorting to this action; the applicant is not asserting that any of his rights or freedoms are infringed by the acts that he seeks to challenge; procedures exist in the Constitution for enforcement of Basic Rights, including those in Section 42, by persons who claim that their rights have been infringed; there are factual issues to be determined, which are better dealt with by evidence from persons who claim that their rights are contravened.

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.

(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) The rules as to standing developed as part of the underlying law in Somare do not apply only in relation to challenges under Section 18(1) of the Constitution to the exercise of legislative power by the National Parliament. Those rules also apply to challenges to the exercise of executive power by the executive arm of the National Government.

(4) The matters to be taken into account in determining whether an applicant has standing are generally the same irrespective of the nature of the act (whether legislative, executive or judicial) or person or body (whether public or private, whether part of the legislative, executive or judicial arms of government) involved.

(5) The likelihood that the hearing of an application under Section 18(1) of the Constitution will involve disputed facts or require factual issues to be determined will not usually be a weighty consideration in determining whether an applicant has standing, given that Order 3, Rule 3 of the Supreme Court Rules 2012 provides for a Judge to take evidence and find facts for the purposes of the substantive application.

(6) 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 are at least three other ways of having the constitutional issues determined by the Courts, this does not mean that he should be refused standing.

(7) The likelihood that factual issues will need to be determined has little bearing on whether the applicant has standing.

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

Cases cited

The following cases are cited in the judgment:

Application by Francis Gem (2010) SC 1065

Application by Tom Ireeuw [1985] PNGLR 430

Application of Jim Kas (2001) SC670

Belden Norman Namah MP v Rimbink Pato MP (2013) N4990

Belden Norman Namah MP v Rimbink Pato MP (2013) SC1241

Bill Skate & Peter O’Neill v Jeffrey Nape (2004) SC754

Complaint by Michael Tambeng (2013) N4959

Jonathan Paru v The State (2012) N4572

Kaseng v Namaliu [1995] PNGLR 481

Mineral Resources Development Corporation Ltd v Ombudsman Commission (2008) SC931

Re Application by Anderson Agiru (2001) SC671

Re Application by Benetius Gehasa (2005) N2817

Re Complaint of Jacob Hendrich Prai and Otto Ondowame [1979] PNGLR 42

Re Complaint of Rosa Jack (2006) N4153

Re Conditions of Detention at Bialla Police Lock-Up (2006) N3022

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

Re Kaka Ruk [1991] PNGLR 105

Re Kopa Kaipia (1989) N709

Re Michael Thomas Somare MP and Sir Julius Chan [1980] PNGLR 255

Re Moki Nikints [1988-89] PNGLR 164

Re Petition of MT Somare [1981] PNGLR 265

Re Petition of MT Somare (No 2) [1982] PNGLR 65

Re Reference by Ken Norae Mondiai (2010) SC1087

Re Ricky Yanepa [1988-89] PNGLR 166

Re Theresa Maip [1991] PNGLR 80

Re Wagi Non [1991] PNGLR 84

Re Yamson Vamble (1989) N743

SCR No 12 of 2001; Re Validity of National Capital District Commission Act 2001 (2001) SC680

SCR No 4 of 2001; Re Validity of National Capital District Commission Amendment Acts (2001) SC678

Southern Highlands Provincial Government & Others v Sir Michael Somare (2007) SC854

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

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

The State v Linus Rebo Dakoa (2009) N3586

The State v Peter Kakam Borarae [1984] PNGLR 99

Titi Christian v Rabbie Namaliu (OS No 2 of 1995, 18.07.96, unreported)

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 M Cooke QC & L R Henao, for the applicant

I Molloy & P Kuman, for the respondents

29th January, 2014

1. BY THE COURT: The Leader of the Opposition Hon Belden Norman Namah MP 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 1 August 2013. He needs a...