SC2787
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCCA NO 2 OF 2025

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

APPLICATION BY THE PANGU PATI INC.

WAIGANI: MOGISH J, HARTSHORN J, KARIKO J, TOLIKEN J, WAWUN-KUVI J
30 SEPTEMBER, 16 OCTOBER 2025

CONSTITUTIONAL LAW –application under Constitution, s 18(1) – declarations sought as to interpretation and application of provisions of the Constitution relating to motions of no confidence in the Prime Minister – whether applicant has standing to make application.

The applicant applied to the Supreme Court under s 18(1) Constitution for a declaration that on the proper interpretation and application of Part VI.2H, s 145 Constitution and s 130A(e), s 142(2), s 142(7) and s 63 Organic Law on the Integrity of Political Parties and Candidates, the nominee in the motion to be appointed the Prime Minister shall be a member of a registered political party whose registered members form the largest number of the members of the Parliament at the material time.  As required by the Supreme Court Rules, the applicant requested the Court declare that it has standing to make the s 18 (1) application.

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, commonly referred to as the Somare Rules.

2.	The applicant does not demonstrate, as an incorporated association making application under s 18(1) of the Constitution, that the application has been properly signed under seal and has not provided evidence of its certificate of incorporation, its Rules or Constitution and any appropriate resolution to file the application. 

3.	Any constitutional issue raised by the applicant is not significant and is trivial and irrelevant.

4.	The applicant’s request for a declaration that it has standing is refused.

Cases cited
Application by Edward Mike Jondi as General Secretary of the PNC Party (2016) SC1561
Application of Hon Douglas Tomuriesa MP (2024) SC2594
Application by Ila Geno (2014) SC1313
Application by Namah (2020) SC1932 
East Sepik Provincial Executive v Marat [2011] PNGLR 126
Haiveta v Wingti [1994] PNGLR 197 
Namah v Pato (2014) SC1304
Polye v O’Neill (2016) SC1547
Re Petition of MT Somare [1981] PNGLR 265
Special Reference by Fly River Provincial Executive Council; Re Organic Law on the Integrity of Political Parties and Candidates (2010) SC1057

Counsel
A Jerewai, for the applicant
N Pilamb, for the first intervener
S Renewa, for the second intervener
D Dotaona, for the third intervener

1.	BY THE COURT: The Pangu Pati Inc. requests the Supreme Court to declare that it has standing to make an application to the Court pursuant to s18(1) of the Constitution, to seek a declaration regarding the eligibility of a nominee for Prime Minister in a motion of no confidence in the Prime Minister (the Application).  

2.	Under O 4 r 17 of the Supreme Court Rules, the Court must first declare that the applicant in a s 18(1) application has standing. 

3.	The request for a declaration as to standing is supported by the first intervener (the Minister for Justice and the Attorney-General) and is opposed by the second intervener (the Speaker of the Parliament) and the third intervener (the Leader of the Opposition).

4.	The main argument in opposing the request is that the applicant lacks a sufficient interest in the subject matter of the Application.

SOMARE RULES

5.	The Supreme Court affirmed in Namah v Pato (2014) SC1304 that in deciding whether an applicant under s 18(1) of the Constitution has standing, the Court has the discretion which is to be exercised in accordance with the rules of the underlying law originally formulated in Re Petition of MT Somare [1981] PNGLR 265. These principles have been endorsed by the Supreme Court in many subsequent cases including Application by Ila Geno (2014) SC1313, Polye v O’Neill (2016) SC1547, Application by Edward Mike Jondi as General Secretary of the PNC Party (2016) SC1561, Application by Namah (2020) SC1932 and Application of Hon Douglas Tomuriesa MP (2024) SC2594.

6.	What have come to be known as the Somare Rules may be summarised as follows:

(a)	the applicant must demonstrate he or she has a sufficient interest in the matter, in that 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.	We apply the Somare Rules to the facts of this case.

SUFFICIENT INTEREST

8.	To answer the question of whether the applicant has sufficient interest, it must first be determined whether the applicant, not being a natural person but purportedly a corporate person, is properly before the Court.

9.	Mr Pilamb, for the second intervener, contends that the decisions in Application by Edward Mike Jondi as General Secretary of the PNC Party (2016) SC1561 and Morauta v Pala (2016) SC1529 relied upon by the respondent and second intervener, are distinguishable from the present case. Following a consideration of those decisions, in our view the principles are relevant and applicable. 

10.	As enunciated in the Application by Edward Mike Jondi as General Secretary of the PNC Party (supra):

16. It is trite principle in corporate law that a body corporate is required to make decisions through a recognized body within its corporate structure and in most cases it is a Committee or a Board. An officer, be it a President, Chairman, Secretary, Treasurer or whosoever or howsoever maybe described, is a Committee or Board member of the body corporate and has no legal authority to make decisions independently on behalf of a body corporate. A body corporate functions and operates through a collective voice. In practice that process is known as a Committee or Board resolution. In this case there is no evidence of a resolution approved or endorsed by the PNC Party through its Party Executive or Committee or Board authorizing the applicant to initiate this proceeding.

11.	In this instance, while the proceeding has been instituted in the name of a political party purportedly incorporated, there is no evidence that the required approval to initiate proceedings was obtained from Party Executives and or a committee and or party members as required under the party Constitution or Rules.

12.	On a review of the legislative scheme, it becomes apparent that standing must be refused.

13.	Section 27(3) of the Organic Law on the Integrity of Political Parties and Candidates 2003 (OLIPPAC) requires the registration of a political party with the Registrar of Political Parties. It reads:

A political party –
(a)	in existence on the date of coming into operation of this Law; and
(b)	required by Subsection (1) to register; and
(c)	which lodges an application for registration under Section 29(1) within six months of the date of coming into operation of this Law, is deemed to be a registered political party for the period from the date of coming into operation of this Law until -
(d)	the date of registration of that political party under Section 34; or
(e)	the date of notification of refusal to register that political party under Section 35.

14.	The qualifications for registration are provided under s 28 of OLIPPAC, which, among other things, require that the political party be incorporated under the Associations Incorporation Act (Chapter 142): see s 28(c) OLIPPAC.

15.	Under s 29, the application for registration must contain the date of incorporation, a copy of the constitution, and the certificate of incorporation issued under the Associations Incorporation Act.

16.	It follows that a political party must first be incorporated under the Associations Incorporation Act and thereafter registered in accordance with the provisions of OLIPPAC. 

17.	There must be evidence of these matters. Here, there is none.

18.	Even if we are to assume that Pangu Pati Inc. is registered under OLIPPAC and incorporated under the Associations Incorporation Act, there is still the hurdle of whether there has been proper approval to institute proceedings.

19.	Section 10 of the Associations Incorporation Act provides (with emphasis added):

10.   	EFFECT OF INCORPORATION.

(1)   	On the grant of a certificate of incorporation to an association under Section 7, the association–
(a) 	is a corporation with perpetual succession and a common seal; and
(b) 	may acquire, hold and dispose of property; and
(c) 	is capable of suing and being sued in its corporate name.
(2) 	The common seal of an incorporated association shall have the name of the association inscribed on the seal in legible characters.
(3)    All courts, Judges and persons acting judicially shall take judicial notice of the seal of an incorporated association affixed to a document and shall presume that it was duly affixed.

20.	Other than not producing evidence of a certificate of incorporation, the Application does not have affixed the seal of Pangu Pati Inc.  The effect of not affixing a seal was addressed in Application by Justice Foundation for Porgera Ltd (2022) SC2257. The Court said:

21. 	Fourthly, affixing a company’s common seal to any legal document is the conventional way in which the company’s intention to be bound by the document is manifested (NHC v Audela Ltd (2020) N8436, Northside Developments Pty Ltd v Registrar-General [190] HCA 32;(1990) 170 CLR 146.
 
22. 	It was suggested in submissions that not only must the common seal of the company be affixed to the signature of the person signing for and on behalf of the company, the person actually signing should state that they sign for and on behalf of the company and show by reference to the date and resolution number of the meeting of the board of directors of the company that the company has authorised the making and signing of the application. We agree with that suggestion. A similar requirement exists regarding the making of special references under s 19 by provincial executives (SC Ref No 3 of 2006; Reference by Fly River Provincial Executive (2007) SC1917). We see no good reason (sic) the same requirement should not apply to s 18(1) applications.

23. 	To summarise, these are the signing requirements for a company making a s 18(1) Constitution application to the Supreme Court:
•	the common seal of the company must be affixed; and
•	the application must be signed by a proper officer of the company who states that they are signing for and on behalf of the company, by reference to the date and resolution number of the meeting of the board of directors by which authorisation of the making and signing of the application was given.

Only when those requirements are complied with can it be said that the application has been signed by the applicant, as required by the Rules.

21.	The combined force of the decisions in Application by Edward Mike Jondi as General Secretary of the PNC Party (supra), Morauta v Pala (supra) and Application by Justice Foundation for Porgera Ltd (supra) require that an applicant, not being a natural person, seeking to make an application under s 18(1) of the Constitution must satisfy the following:

1.	The application is signed by a proper officer of the company who states that they are signing for and on behalf of the company, by reference to the date and resolution number of the meeting of the board of directors by which authorisation of the making and signing of the application was given.
2.	The common seal is affixed to the application.
3.	There is evidence of its certificate of incorporation, Rules or Constitution, and the resolution to file the application. 

22.	While the above principles refer to incorporated companies, they are equally applicable to incorporated associations.

23.	Whilst it may appear that these requirements are stringent, they are necessary to ensure that a non natural person which is an applicant has properly made the application and is legitimately before the Court. Further, the requirements are necessary to protect any abuse of the court process by mere busy bodies filing vexatious and frivolous applications under the guise of a a non natural person. As the Court said in Application by Justice Foundation for Porgera Ltd (supra) at [25]:

Strict compliance with these requirements is necessary as the applicant is making a direct approach to the Supreme Court and seeking to invoke its original jurisdiction under the Constitution. It is a special and significant application, as it seeks declarations that laws made by Parliament are invalid (Application by Namah (2020) SC1934).

24.	In this case, there is no evidence provided by the applicant that the Application has been properly signed and sealed in the manner prescribed in Application by Justice Foundation for Porgera Ltd (supra).

25.	For these reasons, the applicant has failed to satisfy the test for standing.

SIGNIFICANT CONSTITUTIONAL ISSUES

26.	The applicant submits that the issue raised in the Application is serious or significant and is neither trivial nor vexatious. 

27.	The appropriate form in the Supreme Court Rules for a s 18(1) application is Form 1 which requires that in paragraph 3, the relevant provisions of the Constitution and any constitutional law which the applicant seeks to have interpreted and applied are set out.   

28.	The application before us reads at paragraph 3:

The Application requests the Court to declare that the proper interpretation and application of the following provisions of the Constitution and the Organic Law on the Integrity of Political Parties and Candidates are as follows:-

A.	The enabling provisions under Part VI.2H of the Constitution, Section 145 (Motions of No Confidence) in a Prime Minister construed in conjunction with the other provisions thereof including Sections 130(A(e) and 142(2) and (7), and the Organic Law on the Integrity of Political Parties and Candidates (the Organic Law), Section 63 (Invitation to Form Government), have the combined effect which extend to the nominee to be appointed the Prime Minister in a motion of no confidence such that that nominee. 

(1)	shall be a member of a registered Political Party in accordance with Section 24 and 34 of the Organic Law; and 

(2)	that Party has as its registered members the largest number of Members of Parliament at the material time; or 

(3)	since the last general elections, by defection to it or recruitment into its ranks, that Party has the largest number of the Members of Parliament as its registered members at the material time. 
	
(Emphasis added)

29.	The applicant then lists five questions which it explains is to guide the Court in considering the Application. We disregard the questions as their inclusion does not follow the requirements of Form 1. They appear to be points of argument for the applicant if the Application proceeds to hearing. The inclusion of the questions raises an issue on the competency of the Application, but we will not decide on this as it was not an issue properly raised and argued in the hearing.

30.	In paragraph 3 of the Application, the applicant in essence contends that on the proper interpretation and application of the provisions of Part VI.2H, 130A(e), s 142(2), s 142(7) and s 145 of the Constitution and s 63 of the Organic Law on the Integrity of Political Parties and Candidates (OLIPPAC), the nominee to be the Prime Minister in a motion of no confidence Constitution shall be a member of a registered political party whose registered members form the largest number of the members of the Parliament at the material time.  

31.	Mr Jerewai for the applicant urges the Court to note that such interpretation is important as it would be consistent with and conform to the doctrine of “majority rule” which accords with parliamentary democracy and is relevant to having a democratic government; and that it would thereby avoid the undesired situation, which happens currently, where a nominee from a minority party may become the Prime Minister pursuant to a vote of no confidence. 

32.	The Attorney General supports the applicant’s submission, the Speaker views the contention as arguable, while the Leader of the Opposition does not address the point.

33.	Having carefully considered the arguments by the applicant and the provisions of the Constitution and OLIPPAC cited in paragraph 3 of the Application, we are not convinced that adherence to the doctrine or principle of majority rule is in question as suggested by the applicant. 

34.	We briefly refer to those provisions:

Constitution
 
•	Part VI.2H – Protection of Elections from Outside or Hidden Influence and Strengthening of Political Parties – s 127 to s 130A.
•	s 130A(e) – provides that an Organic Law made for the purpose of Part VI.2H may authorize the Head of State to invite a registered political part to form government in certain circumstances.  
•	s 142(2) – a Prime Minister shall be appointed when the Parliament first meets after a general election or when the occasion for the appointment of a Prime Minister arises otherwise than following a general election.
•	s 142(7) - an Organic Law made for the purpose of Part VI.2H may provide for circumstances where a member of the Parliament cannot be appointed as the Prime Minister or hold office as the Prime Minister.
•	s 145 – a motion of no confidence may be a motion of no confidence in the Prime Minister, the Ministry or a Minister. 

OLIPAC

•	s 63 – the Head of State shall invite the registered political party with the greatest number of candidates declared elected in the elections to form the Government.

35.	We find no interplay between the provisions in the Constitution relating to a motion of no confidence in the Prime Minister and the election and appointment of the Prime Minister in accordance with s 63 of OLIPPAC. The election and appointment of a Prime Minister pursuant to motions of no confidence may occur during the term of the parliament subject to the prescribed grace periods, while s63 of OLIPPAC is only relevant to the first meeting of the Parliament after the general elections.  

36.	Indeed, the Supreme Court in Haiveta v Wingti [1994] PNGLR 197 clarified that s142(2) of the Constitution applies to the election and appointment of the Prime Minister following a general election while s 142(3) and s 142(4) apply to the election and appointment of the Prime Minister “from time to time as the occasion arises”. These provisions address how the Parliament is to deal with the appointment of the Prime Minister whether the occasion arises while the Parliament is in session or not.   

37.	The occasions when a Prime Minster is to be elected and appointed other than at the first meeting of the Parliament after a general election are when the office becomes vacant in circumstances provided by the Constitution including resignation, death and removal from office; see ss 142(5), 146, 147. In those instances, the election and appointment are determined by a majority vote of the members of the Parliament. 

38.	Similarly, the election and appointment of the Prime Minister pursuant to a motion of no confidence is dictated by a majority vote of the members of the Parliament. 

39.	In these different situations, the doctrine or principle of majority rule is employed.

40.	Interestingly, the Supreme Court in Special Reference By Fly River Provincial Executive Council; Re Organic Law on the Integrity of Political Parties and Candidates (2010) SC1057 found a number of provisions of OLIPPAC including s 70 to be unconstitutional for infringing the rights of members of the Parliament under s 50 of the Constitution which includes the right to hold public office and to exercise public functions. Section 70 sought to regulate voting by certain members of the Parliament in a motion of no confidence in the Prime Minister, the Ministry or a Minister. 

41.	We further note that OLIPPAC has been in operation since 2003; nearly twenty-two years ago. Since then, many motions of no confidence in the Prime Minister have been tabled in the Parliament. Nominees for the Prime Minister in the motions have included members of the Parliament from a minority party. Those motions have all been decided by a majority vote. 

42.	In the result, we find the application does not raise any significant but trivial and irrelevant constitutional issues. 

43. Given the above, it is not necessary to consider the other submissions of counsel. 

CONCLUSION 

44. For the foregoing reasons, we decline granting the applicant standing and we dismiss the proceeding. As the first intervener supported the applicant, costs will favour the second and third interveners. 

ORDER 
	
1.	The applicant’s request as to standing is refused.
2.	This proceeding is dismissed in its entirety.
3.	The applicant shall pay the second and third interveners’ costs of and incidental to this proceeding. 
_________________________________________________________
Lawyers for the applicant 		:	Jerewai Lawyers
Lawyers for the first intervener		:	Mel & Henry Lawyers
Lawyers for the second intervener	:	Kawat Lawyers 
Lawyers for the third intervener           :         Dotaona Lawyers