SC2843

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCCA NO 16 OF 2025

APPLICATION PURSUANT TO CONSTITUTION SECTION 18(1) 

APPLICATION BY THE HON. WALTER SCHNAUBELT, MP

WAIGANI: SALIKA CJ, HARTSHORN J, MAKAIL J, KARIKO J, WIMALASENA J

9, 12 JANUARY 2026 

CONSTITUTIONAL LAW –application under Constitution, s 18(1) – declarations sought as to interpretation and application of provisions of the Constitution and the Organic Law on Provincial Government and Local-Level Government relating to the by-election for a vacant provincial seat in the Parliament – vacancy due to the death of member for the seat – deceased Governor at time of death – applicant elected to succeed as Governor – whether applicant has standing to make application.

The applicant applies to the Supreme Court under s 18(1) of the Constitution principally for a declaration that on the proper interpretation and application of provisions of the Constitution and the Organic Law on Provincial Government and Local-Local-Level Government, there can be no by-election relating to the office of a member of the Parliament for a Provincial electorate which is vacant due to the death of the member who was also the Governor of the Province, when after the death of the member of the Parliament, a new Governor was elected by the Provincial Assembly.  In accordance with the Supreme Court Rules, the applicant requests the Court to declare that he 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.	Section 106 Constitution is the sole determinant of when there is or is not a vacancy in the office of a member of the Parliament: see Westley Nukundj v. Hon. Steven Pim (2025) SC2756. 

3.	An election for a Provincial Electorate is to elect a Member of Parliament for that Electorate. It is not an election to determine a Provincial Governor. 

4.	A member of the Parliament may not represent two electorates at the same time: s. 101(3) Constitution.

5.	No significant constitutional issues have been raised by the applicant.

6.	The applicant’s request for a declaration as to 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 
Namah v. Pato (2014) SC1304
Polye v. O’Neill (2016) SC1547
Re Petition of MT Somare [1981] PNGLR 265
Westley Nukundj v. Hon. Steven Pim (2025) SC2756

Counsel

R Pato and C Mark, for the applicant
R Williams, for the first intervener
D Mel, for the second intervener

1.	BY THE COURT: The Governor of the New Ireland Province, the Hon. Walter Schnaubelt, requests the Supreme Court to declare that he has standing to make an application to the Court pursuant to s. 18(1) Constitution, to seek declarations relating to the conduct of a by-election for the New Ireland Provincial Electorate in the Parliament which became vacant upon the death of the member for that electorate.  

2.	Pursuant to O 4 r 17 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 opposed by the first intervener, the Electoral Commission and the second intervener, the Minister for Justice and the Attorney-General.

SOMARE RULES

4.	In deciding whether an applicant under s 18(1) Constitution has standing, the Supreme Court affirmed in Namah v Pato (2014) SC1304 that 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. 

5.	The principles formulated in that case 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 been since commonly referred to 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.

BRIEF BACKGROUND

8.	The brief facts giving rise to the Application are these:

•	The 2022 general elections resulted in the Rt. Hon. Sir Julius Chan being successfully elected as the member for the New Ireland Provincial Electorate in the Parliament (Provincial Electorate).

•	By virtue of s. 17 Organic Law on Provincial Government and Local-Local-Level Government (Organic Law), Sir Julius assumed the office of the Governor of New Ireland Province (Provincial Governor). 

•	Sir Julius died in office on 30th January 2025, resulting in the seat for the Provincial Electorate and the office of Provincial Governor becoming vacant.

•	On 28th March 2025, the New Ireland Provincial Assembly elected the applicant as Provincial Governor pursuant to s. 21(1) Organic Law.

•	On 4th December 2025, the Governor-General, acting on the advice of the Electoral Commission, issued writs for a by-election for the vacancy for the Provincial Electorate.

•	Contending that the conduct of the by-election is unconstitutional, this proceeding was filed. 

CONSIDERATION

9.	Consideration is given as to whether there are significant constitutional issues raised in the application and specifically in the declarations sought in the application.

10.	The applicant submits that the application raises serious and substantial constitutional questions. These include the interpretation and application of certain sections of the Constitution and the Organic law which all relate to the constitutionality or otherwise the legality of conducting a by-election when no vacancy exists or arises in the office of a Provincial Governor.

11.	As to a by election, such shall be held to fill a vacancy in the office of an elected Member of the Parliament pursuant to s. 106 Constitution. A by-election is not dependent upon whether there is a vacancy in the office of a Provincial Governor. This submission has no merit and is incorrect.

12.	The applicant submits that a Provincial Electorate and the Governorship of such Province are constitutionally inseparable. Further, it is submitted that a Provincial Governor elected under s. 21(1) Organic Law, automatically fills the constitutional position of the Provincial Member and that there is therefore no vacancy in the office of the elected Member of Parliament for the said Provincial Electorate.

13.	An election for a Provincial Electorate is to elect a Member of Parliament for that Electorate. It is not an election to determine a Provincial Governor. There is no law in the Constitution or Organic Law to the effect that upon the election of a Provincial Governor pursuant to s. 21(1) Organic Law there ceases to be a vacancy in the office of the elected Member of Parliament for the relevant Provincial Electorate. Section 106 Constitution is the sole determinant of when there is or is not such a vacancy: see Westley Nukundj v. Hon. Steven Pim (2025) SC2756. 

14.	Moreover, if there was no vacancy as submitted, this would in effect result in a Provincial Governor elected pursuant to s. 21(1) Organic Law, who is already a Member of Parliament, representing two electorates at the same time. This is contrary to s. 101(3) Constitution.

15.	The applicant submits that the election of a Provincial Governor pursuant to s. 21(1) Organic Law is final and cannot be revoked or set aside except through a petition under s. 208 Organic Law on National and Local Level Governments. The said s. 208 is only concerned with petitions which dispute elections for electorates for the National Parliament. Section 208 does not provide for a dispute concerning the election of a Provincial Governor by members of a Provincial Assembly. This submission has no merit and is incorrect.

16.	The applicant submits that it is contrary to s. 41 Constitution to conduct a by-election during the Christmas and New Year period particularly when it would occur less than a year before the next “cycle” of National General Elections.

17.	Although the writ for the by-election has been issued, the voting in the by-election will not occur, we are informed, until 19th January 2026 - after the New Year period. In addition, the by-election will occur in the period which is more than one year before the next “cycle” of National General Elections. This submission has no merit.

18.	The applicant submits that as the concept of a “vacancy” following an election of a Provincial Governor under s. 21(1) Organic Law is not expressly defined the law must be properly construed by the Supreme Court. Until that occurs, it is submitted that any attempt to conduct a by election should be stayed.

19.	 The Constitution at s. 106 determines when there is a vacancy in the office of an elected Member of Parliament. It is not concerned with whether there is a vacancy in the office of a Provincial Governor. The question of whether there is a vacancy in the office of a Provincial Governor is not a consideration in whether there should be a by-election. This submission has no merit.

20.	Consequently, for the above reasons we are not satisfied that any significant constitutional issues have been raised by the applicant. The arguments of the applicant to the contrary will not succeed. There are no reasonable arguments which have any prospect of success in obtaining the declaratory or any relief sought in the application. 

21.	Given this, it is not necessary to consider the other submissions of counsel.

ORDERS

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

b)	This proceeding is dismissed.

c)	The applicant shall pay the costs of both intervenors of and incidental to this proceeding on a party-party basis to be taxed if not otherwise agreed.

________________________________________________________________ 
Lawyers for the applicant:                Steeles Lawyers
Lawyers for the first intervener:      Niugini Legal Practice
Lawyers for the second intervener: Mel and Henry Lawyers