Justice Sakora granted the leader of the Opposition, hon. Belden Namah’s request for a declaration to the effect that Mr. Namah has Standing to make application in the Court House, Court Room 1 this morning [29 January 2014, Port Moresby, Papua New Guinea.]

This is in contrast to a similar application by Mr. Namah filed earlier in 2013, which was dismissed by the court (Cannings J, Kassman J, Murray J), upon upholding an objection by the same respondents to its competency (Belden Norman Namah MP v Rimbink Pato MP (2013) SC 1241).

This is following applicant, Mr. Namah’s pursuant to Constitution, Section 18 (1) regarding the Asylum Centre in Manus, where Respondents were namely:

1. Minister for Foreign Affairs & Immigration, Rimbink Pato, MP,
2. The National Executive Council
3. and the Independent State of Papua New Guinea. Judges who delivered the reading today were Justice Sakora and Justice Cannings;

Initially a five (5) men Supreme Court Bench ruled in favour of the Opposition Leader today. Counsels representing the Applicant and Respondent were Henao Lawyers for the Opposition Leader and Kuman Lawyers for the Respondents.

During the hearing, Justice Sakora read that 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 government of Australia and Papua New Guinea as to the transfer of persons seeking asylum in Australia but are instead transferred to PNG from Australia for processing.

Justice Sakora 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: RIGHTS OF ALL PERSONS 42. Liberty of the Person (1) No Person shall be deprived of his personal liberty except – (and it lists reasons including where the person is unfit to plead to a criminal charge or other instances where the person is implicated, for contempt of court execution of the sentence or order of a court in respect of an offense he has committed and etc.)

However, before an application under Section 18 (1) of the Constitution can be heard, the Supreme Court Rules 2012 require that the court should declare that the applicant has standing which is a matter at the discretion of the Supreme Court again, to be exercised in accordance with the rules of the underlying law formulated in Re Petition of MT Somare [1981] PNGLR 265.

The Somare Rules used as are as follows: a) The applicant will have standing if he or she has 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 peoples affairs and must not be engaged in litigation for some improper motive, e.g. as a tactic of delay.
d) The fact that there are other ways of having constitutional issues determined by the Supreme Court does not mean that a person should be denied standing.

In determining the standing of the Opposition Leader, Justice Sakora preceded as such that when applying the four Somare rules to the 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.

Therefore the applicant, Mr. Namah’s request for declaration of standing to make the application was granted; As was the Judgment accordingly: Order:
(1) The applicants request is granted.
(2) It is declared that the applicant has standing to make the application.
(3) The respondents shall pay the costs of and incidental to the hearing of the request to the applicant, on a party-party basis, which shall, if not agreed, be taxed.

Source: The Opposition, Papua New Guinea [Facebook Page]


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