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Balakau v Torato and Openakali [1983] PNGLR 242 (27 July 1983)

Papua New Guinea Law Reports - 1983

[1983] PNGLR 242 - Malipu Balakau v Paul Torato and Tiane Openakali 

[1983] PNGLR 242

SC256

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL ELECTIONS

MALIPU BALAKAU

V

PAUL PAKEN TORATO

AND TIANE OPENAKALI

Waigani

Kidu CJ Kapi DCJ Andrew J

23-24 May 1983

27 July 1983

PARLIAMENT - Elections - Disputed election petition - Appeals - Whether appeal from National Court to Supreme Court - Whether “review” - by Supreme Court available - Organic Law on National Elections, s. 220 - Constitution, s. 155(2)(b).

The Organic Law on National Elections, s. 220, provides: “A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way.”

The Constitution, s. 155(2)(b), provides: “The Supreme Court ... (b) has an inherent power to review all judicial acts of the National Court;”

Held

(1)      (Kapi DCJ dissenting) A decision of the National Court in respect of a disputed election petition is, in accordance with s. 220, final, and there is no right of appeal therefrom to the Supreme Court.

Avia Ahia v. The State [1981] P.N.G.L.R. 81, considered.

(2)      (Kapi DCJ dissenting) Section 220 of the Organic Law on National Elections, insofar as it purports to prohibit the review power of the Supreme Court “in any way”, is in conflict with s. 155(2)(b) of the Constitution and is invalid.

Avia Ahia v. The State [1981] P.N.G.L.R. 81 followed.

Discussion by Kidu CJ of the distinction between the Pre-Independence Court of Disputed Returns and the National Court in relation to the hearing of election petitions.

Cases Cited

Avia Aihi v. The State [1981] P.N.G.L.R. 81.

Avia Aihi v. The State (No. 2) [1982] P.N.G.L.R. 44.

C.M. Van Stillevoldt, B.V. v. E.L. Carriers Inc. [1983] 1 W.L.R. 207; [1983] 1 All E.R. 699.

Constitutional Reference (No. 1) of 1979 [1979] P.N.G.L.R. 329.

Constitutional Reference (No. 2) of 1978; In re Corrective Institution Act [1978] P.N.G.L.R. 404.

Hamersley v. McCabe [1916] WALawRp 13; (1916) 18 W.A.L.R. 130.

Holmes v. Angwin [1906] HCA 64; (1906) 4 C.L.R. 297; 13 A.L.R. 128.

Leleibuna v. The Magistrates of the Village Court at Bubuleta (Unreported judgment of Chief Justice 21 January 1981).

Moresby North East Election Petition, Re; Patterson Lowa v. Goasa Damena [1977] P.N.G.L.R. 429.

S.C.R. No. 4 of 1982; Re Delba Biri v. Bill Ginbogh Ninkama [1982] P.N.G.L.R. 342.

State, The v. John Mogo Wonom [1975] P.N.G.L.R. 311.

Appeal

This was a purported appeal from a decision of the National Court in respect of a disputed election petition.

Counsel

K. Y. Kara, for the petitioner/appellant.

B. Sakora, for the first respondent.

J Everingham, for the Electoral Commissioner.

Cur. adv. vult.

27 July 1983

KIDU CJ: In the 1982 National Elections the Seat of Enga Provincial Electorate was won by the first respondent, Paul Paken Torato. One of the contestants for the electorate, Mr Malipu Balakau, filed a petition in the National Court challenging the results of the election. The matter was entertained by the National Court and the Court ordered a recount of votes. This recount confirmed that Mr Torato was still the Member for Enga Provincial Electorate.

On 25 March 1983, the petitioner, Mr Balakau, then purported to file a notice of appeal in the Supreme Court appealing against the decision of the National Court. On 8 April 1983, the first respondent filed an objection to the competency of the appeal. The grounds of the objection are:

(1)      That the decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way.

(2)      That in any case but without admitting that the appellant had a right of appeal in this matter the purported notice of appeal is out of time.

Section 220 of the Organic Law on National Elections reads as follows:

“A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way.” (My emphasis)

The Constitution only guarantees a right of appeal to higher courts in criminal cases. Section 37(15) of the Constitution provides:

“Every person convicted of an offence is entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law.”

Section 37(16) says as follows:

“No person shall be deprived by law of a right of appeal against his conviction or sentence by any court that existed at the time of conviction or sentence, as the case may be.”

There is no provision in the Constitution which guarantees the right to appeal from a decision of a lower court (on non-criminal matters) to a higher court. The only provision in the Constitution which does guarantee a right in non-criminal matters is s. 37(11). This provision is worded as follows:

“A determination of the existence or extent of a civil right or obligation shall not be made except by an independent and impartial court or other authority prescribed by law or agreed upon by the parties, and proceedings for such a determination shall be fairly heard within a reasonable time.”

In non-criminal matters, therefore, if there are to be rights of appeal from decisions of lower courts to the higher courts such rights must be found in relevant statutes. For instance, as far as appeals from the National Court to the Supreme Court are concerned, the general appeal provision is found in s. 4(1) of the Supreme Court Act 1975 (Ch. No. 31). It reads:

“(1)    An appeal in accordance with this Act lies to the Supreme Court from a judgment of the National Court.”

So s. 4; subject to specific provisions relating to specific matters covered by special legislation, gives a general right of appeal from any judgment of the National Court to the Supreme Court. Therefore if there were no other provisions relating to appeals from the National Court to the Supreme Court in electoral matters, s. 4 of the Supreme Court Act would quite clearly give a right of appeal.

But s. 220 of the Organic Law on National Elections specifically prohibits appeals from decisions on election petitions by the National Court to the Supreme Court. There is absolutely no constitutional reason why s. 220 or any other statutory law cannot prohibit appeals in non-criminal cases. Section 220 is not unconstitutional as it relates to the right of appeal. It is Parliament’s prerogative whether it grants rights of appeal from lower courts to higher courts in non-criminal cases.

The right of appeal, for example, in the Constitution s. 37(15) and (16), is different from the power of review in the Constitution s. 155(2)(b).

In Avia Aihi v. The State [1981] P.N.G.L.R. 81 at 86 I said:

“... What was submitted by counsel for the respondent was the Constitution provides for two different things in s. 37(15); it guarantees the right of review whereas s. 37(16) relates to the right of appeal.

I consider that s. 37(16) is not to be used to infer or draw a distinction between appeals and reviews. In my opinion what s. 37(16) does is to ensure that when a person is convicted and sentenced and at the time of such conviction and sentence there existed a right of appeal he should not be deprived by any law of such a right. It does not in my view create a distinction between a right of appeal and a right of review. I consider that s. 37(16) has no relevance to the present matter before this Court”.

That the two constitutional provisions relate to appeals is supported by the following statements from the Constitutional Planning Committee Report,

(a)      “Firstly we propose the addition of a number of provisions under the head ‘Provisions to secure protection of law’ to give additional rights and protection of individuals. These include the right to appeal in accordance with a law which sets out permissible grounds of appeal; ...”.(Par. 26, p. 5/1/5.).

“However, we recommend a number of additional protections of the individual which we believe are important if Papua New Guinea’s system for administering justice is to be one which in fact dispenses justice. These include safeguarding the right of every person convicted of an offence to an appeal to a higher court or tribunal...”.(Par. 48, p. 5/1/10.)

(b)

“13.    Every person convicted of an offence (including an offence as a detainee) shall be entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law.

...

15.     No person shall be deprived by law of a right to appeal against his conviction or sentence by any court if at the commencement of that law, either the time for appealing against his conviction or sentence has not expired, or he has lodged an appeal which has not been determined.” (Pars. 6(13) and 6(15), p. 5/1/25) (All emphasis is mine.)

There can be no doubt that the Constitution, s. 37(15) and s. 37(16), relate to a person’s right of appeal. They do not deal with any power of a higher court to review judicial acts of courts lower than it. I consider that s. 155(2)(b) of the Constitution does not empower the Supreme Court merely to review appeals guaranteed or allowed by s. 37(15) and (16) of the Constitution or statutes. As the majority of this Court said in Avia Aihi v. The State in relation to s. 155(2)(b):

(a)      By Kidu CJ at 88

“What s. 155(2)(b) gives is a power.... I concur with the Deputy Chief Justice that this Court has discretionary power given to it by s. 155(2)(b) of the Constitution and the applicant should be required to convince the court why she should have this discretion exercised in her favour to allow her leave to apply for her sentence to be reviewed.”

(b)      By Kearney DCJ at 92

“This Court, as part of the National Judicial System, is invested with the judicial authority of the people: Constitution, s. 158(1). That is the exclusive and ultimate source of its authority.

The word ‘inherent’ in the Constitution, s. 155(2)(b), I think, indicates that it is direct from that unlimited well that the court’s authority under that provision is derived; it is not a reference to a power possessed by the court simply because it is a court.

The word ‘inherent’ also connotes that within the limits of the subject matter of the Constitution, s. 155(2)(b) — ‘judicial acts of the National Court’ — the power of review of this Court is plenary. In the absence of express constitutional provision, that power and its exercise cannot be restricted, by any Act of Parliament; there is no express constitutional provision — see per Andrew J in Constitutional Reference No. 1 of 1979 [1979] P.N.G.L.R. 329 at 401. So, for example, a privative clause would be of no effect — see the illustration by Pritchard J in In re Moresby North East Election Petition; Patterson Lowa v. Goasa Damena [1977] P.N.G.L.R. 429, at 442. Contrast the Constitution, ss 155(3)(a) and 155(3)(e), as regards the National Court.

Whether the power is to be exercised in a particular case must always remain wholly a matter for this Court, in its discretion. I consider that it is a truly discretionary jurisdiction, of much the same type as that of the Privy Council in exercising what the common law recognizes as its inherent prerogative to grant special leave to appeal, though an applicant has no right by statute to appeal.

I consider that this court’s discretionary and reserve power under the Constitution, s. 155(2)(b), is additional to the power and jurisdiction vested in the court under the Constitution, s. 155(2)(c); this appears clearly from the language used. The latter is dependent in part on the exercise of legislative power by Parliament; the former is not.

The latter is subject to limits imposed by Acts; the former is not.

It is to be expected that the final court of appeal in the National Judicial System would be expressly vested by the Constitution with a discretionary jurisdiction of the type in the Constitution, s. 155(2)(b), so as to ensure the dispensation of justice; it is a common feature of many judicial systems. The policy of the Constitution in this respect is made strikingly clear in s. 155(5), as regards the National Court.

No distinction is to be drawn in my opinion, as regards the Constitution, s. 155(2)(b), between the concepts of ‘jurisdiction’ and ‘power’. In normal language usage, ‘jurisdiction’ connotes the authority of a court to exercise judicial power in a specific case; while ‘judicial power’ is the totality of the powers of a court, when it embarks upon the hearing of a case within its jurisdiction. The Constitution, s. 155(2)(b), however, vests in the court an unrestricted authority to review certain judicial acts; and that, in effect, is a grant of jurisdiction. A grammatical support for this view is the reference to ‘other jurisdiction’ in the Constitution, s. 155(2)(c). Further, it appears that the ‘inherent power’ in the Constitution, s. 155(4) is characterized as a ‘jurisdiction, in the Constitution, s. 155(3)(d), although the ‘power’ there referred to in fact accords more closely with the strict sense of the word. The Constitution, ss 155(2)(b) and 155(2)(c) are clearly two distinct and separate heads of jurisdiction”.

(c)      By Andrew J at 102:

“The Constitution is the supreme law of Papua New Guinea and all acts (whether legislative, executive or judicial) that are inconsistent with it are, to the extent of the inconsistency, invalid and ineffective; the Constitution, s. 11. The powers given to the Supreme Court by s. 155(2)(b) are unfettered. This is also made clear by the Constitution, for s.155(3) gives the National Court an inherent power to review any exercise of judicial authority but this power is subject to removal or restriction. The Constitution places no such limitation on the Supreme Court.

For these reasons it is my view that it is the grant of power and jurisdiction to the Supreme Court by the Constitution in s. 155(2)(b) which means that the court has a discretionary power to review the sentence passed upon the applicant. That power cannot be subject to or restricted by the Supreme Court Act, 1975”.

The Constitution overrides all Organic Laws and Statutes (Constitution s. 10) therefore s. 220 of the Organic Law on National Elections cannot affect the Supreme Court’s power granted by s. 155(2)(b) of the Constitution. Section 220 is constitutionally valid as it relates to the right of appeal but is not as it purports to prohibit the review power of this Court under s. 155(2)(b) of the Constitution. The former is saved by s. 10 of the Constitution. I would uphold the objection to the competency of the appeal.

It is, of course, open to Mr Balakau to proceed under s. 155(2)(b) of the Constitution.

There are two outstanding matters. One was raised by Mr Everingham and the other by Mr Kara.

Counsel for the second respondent submitted that when the National Court sits to hear election petitions it does not sit as the National Court but as equivalent to what was known as the Court of Disputed Returns before Independence. Therefore, he submitted, since it is a special court, although it is called the National Court in s. 126 of the Constitution, there can be no appeals from this special tribunal to the Supreme Court. He referred to a High Court of Australia case — Holmes v. Angwin [1906] HCA 64; (1906) 4 C.L.R. 297. In this case there was an appeal to the High Court of Australia from the Court of Appeal of Western Australia. It seems that in an election in Western Australia a person who lost filed a petition in the Court of Disputed Returns of Western Australia. This was done under the West Australian Electoral Act 1904. Section 157 of the Electoral Act of Western Australia provided as follows:

1.       The validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns, and not otherwise

2.       A Judge of the Supreme Court sitting in open court shall constitute the Court of Disputed Returns.

The High Court held that there could not be any appeal from the West Australian Court of Disputed Returns to any court (including the High Court of Australia) because s. 165 of the West Australian Electoral Act said that all decisions of the Court of Disputed Returns were to be final and conclusive without appeal and were not to be questioned in any way. The High Court’s decision was that the Court of Disputed Returns had been set up as a special tribunal and although it was a Supreme Court Judge who sat in this special court it was still a special tribunal and there were to be no appeals from it to any higher court unless legislation specifically allowed and since the legislation did not no person could appeal from a decision of the Court of Disputed Returns to the High Court of Australia.

In Papua New Guinea the old Electoral Act 1963 established a Court of Disputed Returns. Section 200 of this repealed legislation specifically provided as follows:

“The validity of an election or return may be disputed by petition addressed to the court of disputed returns and not otherwise.”

Section 201 of the same legislation read:

“1.      The Supreme Court is the court of disputed returns.

2.       The jurisdiction of the Supreme Court sitting as the court of disputed returns may be exercised by a single judge.”

It is to be observed here that the Supreme Court mentioned in s. 201 above is now the National Court of Justice (see the Constitution).

It is quite clear then that before Independence there was a special court of disputed returns set up by legislation. However, on 16 September 1975, when the Constitution of The Independent State of Papua New Guinea and the Organic Law on National Elections came into operation such a court was abolished and the law has provided as from that date that any election petitions be filed in the National Court. Mr Everingham (for the second respondent) submitted that the term “National Court” in s. 126 and in the Organic Law on National Elections must be read to mean a special tribunal constituted by a judge of the National Court. However I have great difficulty accepting this point as I pointed out during submissions by counsel.

The Constitution makes no such differentiation between the term “National Court” in s. 126 and any other provisions therein where the same term is used. It is quite clear to me that where the words “National Court” appear in any part of the Constitution or Organic Laws or in Acts of Parliament it means the National Court of Justice. If the Parliament or founding fathers of our Constitution had intended that a special tribunal be set up to hear election petitions they would have made specific provisions either in the Constitution or in the Organic Law on National Elections. Therefore, it is the National Court of Justice which sits and hears election petitions and not any special tribunal.

Mr Everingham submitted that in looking at the term “National Court” in S. 126 of the Constitution the Supreme Court ought to bear in mind the peculiar history of election laws and the peculiar jurisdictions which courts of disputed returns had been given by legislation in England and Australia and in Papua New Guinea up to the time the nation became independent. However, in my view this history is of no relevance because the Constitution created a new order in this country, created a new court structure and it was this structure including the National Court which was given comprehensive jurisdiction. In fact s. 155(3) provides as follows —

“3.      The National Court:

(a)      has an inherent power to review any exercise of judicial authority; and

(b)      has such other jurisdiction and powers as are conferred on it by this Constitution or any law.

except where:

(c)      jurisdiction is conferred upon the Supreme Court to the exclusion of the National Court; or

(d)      the Supreme Court assumes jurisdiction under sub-section 4; or

(e)      the power of review is removed or restricted by a Constitutional Law or an Act of Parliament.”

Section 126(7) of the Constitution and s.206 of the Organic Law on National Elections empower the National Court to entertain election petitions.

Mr Kara for Mr Balakau made several submissions. I have already dealt with all except one. This was that this Court, being the final court of appeal, has the power to hear appeals from the National Court and he referred to s. 155(2)(a) of the Constitution which says:

“The Supreme Court:

(a)      is the final court of appeal; and

(b)      has an inherent power to review all judicial acts of the National Court; and

(c)      has such other jurisdiction and powers as are conferred on it by this Constitution or any other law.”

As to this submission I have these comments to make. Section 155(2)(a) does not by itself give the Supreme Court the power to hear appeals from lower courts or review judicial acts of both the National Court and the other lower courts. The intention of that provision quite clearly is to emphasize the fact that no longer after 16 September 1975, would there be any appeals from the Supreme Court of Papua New Guinea to any courts outside the country. I say this because that is what is said in the Constitutional Planning Committee Report. On 8/3 par. 24 this is what the Constitutional Planning Committee stated:

“THE SUPREME COURT

The Highest Court in the country should be the Supreme Court, which should be the final appeal court for all cases heard under Papua New Guinea Law. We believe that the provision of a right to appeal against judgments of our courts to foreign courts would eventuate the incorporation in our legal system of values alien to our role. Submissions we have received have firmly opposed the continuance of appeals to a foreign court such as High Court of Australia.”

The actual recommendation of the Constitutional Planning Committee appears on 8/18 of the Constitutional Planning Committee Report:

“THE SUPREME COURT FOR

(1)      There shall be a Supreme Court which shall be the final court of appeal for Papua New Guinea constituted, subject to the Constitution, in accordance with law.”

I hold the view that there is no doubt that the intention of s. 155(2)(a) was merely to ensure that everybody understood that there would be no appeals from the Supreme Court of Papua New Guinea to any courts outside. It does not by itself give any extra jurisdictions to the Supreme Court. The jurisdiction of the Supreme Court is given by other provisions.

KAPI DCJ: The Chief Justice has conveniently set out the background to this preliminary point of law and I do not wish to repeat it.

There are two grounds upon which the objection to competency of the appeal is based. They are:

(1)      That the decision of the National Court under the Organic Law on National Elections is final and conclusive and without appeal, and shall not be questioned in any way.

(2)      That in any case, but without admitting that the appellant had a right of appeal in this matter, the purported notice of appeal is out of time.

The first argument which is put forward in support of the incompetency argument is based on s. 220 of the Organic Law on National Elections (hereafter referred to as the Organic Law). It is as follows:

“A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way.”

This argument was further supported by the submission that the special jurisdiction given to the National Court under the Organic Law is a unique jurisdiction and is to be treated differently from other jurisdictions of the National Court given by other provisions of the Constitution and other laws. It was submitted that this is supported further by the fact that the question of appeal in this special jurisdiction is treated separately under s. 126(7)(d) of the Constitution. In fact it was submitted that the National Court, for all purposes under the Organic Law, is to be treated as a court of disputed returns.

I agree with the Chief Justice that the National Court under the Organic Law is the same court as is used throughout the Constitution, and other laws, and is to be understood as such and not otherwise. The significance of this will become apparent later on in my judgment, when the provisions of the Supreme Court Act are considered.

Constitutionality of s. 220 of the Organic Law on National Elections.

Section 220 affects two things:

1.       It takes away the right of any aggrieved person of appealing to the Supreme Court.

2.       It prevents the Supreme Court from reviewing any decision of the National Court under the Organic Law.

As to the first, no question of the unconstitutionality of the provision arises. There is no constitutional right of appeal given to any person on non-criminal matters. In this, I agree with the Chief Justice. As to the right of appeal given to a person to appeal against a decision of the National Court under the Supreme Court Act, I will deal with this later.

As to the prevention of the Supreme Court from reviewing a decision of the National Court by s. 220 of the Organic Law, this must be read subject to the Constitution. The provision that comes up for decision is s. 155(2)(b) of the Constitution. It is in the following terms:

“(2)    The Supreme Court:

(a)      ...

(b)      has an inherent power to review all judicial acts of the National Court; and

(c)      ...”

What is the interpretation of the word “review”? The same word is used in s. 37(15) but in the past tense, “reviewed”. I am of the opinion that this word is used here consistently as in s. 155(2)(b).

These provisions were considered in Avia Aihi v. The State [1981] P.N.G.L.R. 81. It was argued in that case that s. 37(15) guaranteed a right of review and s. 37(16) guaranteed a right of appeal. The Chief Justice at 86 said:

“I consider that s. 37(16) is not to be used to infer or draw a distinction between appeals and reviews. In my opinion what s. 37(16) does is to ensure that when a person is convicted and sentenced and at the time of such conviction and sentence there existed a right of appeal he should not be deprived by any law of such a right. It does not in my view create a distinction between a right of appeal and a right of review.”

Deputy Chief Justice, Kearney (as he then was), at 89, said:

“The process of ‘review’ referred to in the Constitution, s. 37(15), is equivalent to the process of appeal; see Constitutional Reference No. 2 of 1978; In re Corrective Institution Act [1978] P.N.G.L.R. 404 at 408, 409. By his appeal, a convicted person seeks to have his case reviewed; I respectfully agree with the linguistic analysis of these words by Kapi J”

At 105, I said:

“Before I consider the merits of these submissions, I shall first consider a submission by counsel for the State, namely that s. 37(15) of the Constitution is not applicable because it deals with a ‘review’ and not an ‘appeal’. He tried to distinguish between the use of the word ‘appeal’ in s. 37(16) and ‘review’ in s. 37(15). In my view there is no difference between the use of the words ‘appeal’ and ‘review’ under s. 37(15) and (16) of the Constitution. As far as this case is concerned these terms refer to the same process. The word ‘appeal’ is used when a person who is given the right to appeal is invoking the power of the appellate court to review a decision of a lower court. The word ‘review’ is used to describe the same process from the point of view of the appellate tribunal which is exercising the power to hear the appeal by the person appealing. As a matter of English language, you cannot say that the appellate tribunal is exercising a right of appeal or is appealing a decision of a lower court, nor can you say a person who is appealing is exercising their right to review, or is reviewing against a decision of a lower court. It follows that under s. 37(15) you cannot say that every person convicted of an offence is entitled to have his conviction and sentence appealed by a higher court or tribunal, according to law. In the same way, you cannot say that under s. 37(16) no person shall be deprived by law of a right of review against his conviction or sentence by any court that existed at the time of the conviction or sentence as the case may be. In so far as the use of the words ‘appeal’ and ‘review’ are concerned they are referring to the same process. However, the word ‘review’ is wide enough to include the power of the court to review any act of the National Court by way of prerogative writs. We are not concerned with this type of review in this case. In this case we are concerned with review by way of an appeal. As far as appeals from the National Court to the Supreme Court are concerned, the right of a person to appeal or extend time in which to appeal is provided for under the Supreme Court Act.”

I have referred to these passages on the interpretation of s. 37(15) and s. 37(16) because in my view they have to be read consistently with the power of review given under s. 155 of the Constitution.

In interpreting s. 155(2)(b) of the Constitution, in the abovenamed case, Kearney DCJ said at 92:

“As in the Constitution, s. 37(15), so in the Constitution, s. 155(2)(b) I consider that the process of review is equivalent to the process of appeal.”

At 108, I said:

“... However, I would give this section the same interpretation as in relation to s. 37(15) of the Constitution in that the word ‘review’ here includes the appeal procedure. I must admit that I found the arguments of counsel for the State very attractive in that s. 155(2)(b) is a power separate and different from powers of appeal under s. 155(2)(a) and powers relating to prerogative writs; s. 155(4) of the Constitution. However if I were to come to this conclusion, power under s. 155(2)(b) would be an entirely different concept to judicial review by way of appeal under a statute, and judicial review by way of prerogative writs. Such a concept would be completely new under our law. Having read the Final Report of the Constitutional Planning Committee on the powers of the Supreme Court I do not find that there is an intention on the part of the constitutional framers to introduce such a new concept of review. The point I am making is that s. 155(2)(b) deals with general powers of review by way of appeal and power of review by way of prerogative writs.”

The Chief Justice and Andrew J would appear to have agreed with the construction given by Kearney DCJ, as they agreed with him in his conclusions on the extent of the power under s. 155(2)(b). Greville Smith J would appear to agree with the majority on the meaning of review. He discusses judicial review by way of appeal, and judicial review by way of prerogative writs.

The power to review is an all-embracing one to review all judicial acts of the National Court without any exception. This includes all acts of the National Court under the sun, whether they relate to matters of fact, law, criminal, civil or whatever. There is nothing that the National Court can do which does not come under the power of review of the Supreme Court under s. 155(2)(b). This power cannot be affected by any development of the underlying law, statute, or Organic Law.

To review a judicial act of the National Court simply means to re-examine a judicial act of the National Court. Section 155(2)(b) says no more than that. This section does not deal with the right of parties who may invoke that power, nor does it deal with the procedure of invoking the power of review. These are matters left to other provisions of the Constitution and other laws. For instance, s. 37(15) of the Constitution guarantees the rights of individual persons who may invoke the power of the Supreme Court to review an act of the National Court on conviction or on sentence. The Supreme Court Act 1975, and the Rules of the Supreme Court deal with the practice and procedure of getting to the Supreme Court on either criminal or civil cases. On these matters, i.e. the right to invoke and the practice and procedure, s. 155(2)(b) is not relevant.

It is significant to appreciate that a matter may come to the Supreme Court for review by any procedure allowed by law. These include appeal procedures under the Supreme Court Act, reservation of points of law under the Supreme Court Act, and any other procedure allowed by law such as certiorari or prohibition. It is true that in the case of appeal procedures the Supreme Court Act gives the Supreme Court power to review. See s. 16 and s. 23 of the Supreme Court Act. However, s. 155(2)(b) puts the power on a superior level which cannot be taken away by an Act or an Organic Law. The legislature has done this in other matters. For instance, under s. 22 of the Supreme Court Act, a convicted person has a right of appeal but this right is given constitutional protection under s. 37(15) of the Constitution.

The same construction would be given to the power to review given to the National Court under s. 155(3)(a) of the Constitution. In Rex Leleibuna v. The Magistrates of the Village Court at Bubuleta (unreported un-numbered judgment of Kidu CJ, dated 21 January 1981), he treated the power to “review” under s. 155(3) as including the power of review in the appeal procedure under the Village Courts Act.

Section 220 of the Organic Law prevents any means of coming before the Supreme Court on a decision of the National Court under the Organic Law. In doing so, it prevents the Supreme Court from reviewing any judicial act of the National Court in election matters. It has been conceded by all counsel that a decision of the National Court under the Organic Law is a judicial act. By making such a decision final and conclusive, and without appeal under s. 220, this judicial act is made an exception to the power of review under s. 155(2)(b). As I have pointed out, there can be no exception to the power of review. This prevents the Supreme Court, in an election matter, from reviewing any act of the National Court on:

(a)      questions of law,

(b)      a question of mixed fact and law,

(c)      a question of fact,

see s. 4 of the Supreme Court Act.

This cuts down the very wide powers of the Supreme Court to review all judicial acts of the National Court under s. 155(2)(b) of the Constitution. Section 220 of the Organic Law is inconsistent with s. 155(2)(b) and therefore invalid and ineffective.

A view has been held that the power to review under s. 155(2)(b) is a new creature and does not include the power of review on appeal and by way of prerogative writs. I differed from this view in Avia Aihi v. The State (supra) at 108-109. With respect, I am still not convinced that this is the right view. The majority held, in the above case, that this power is equivalent to the power of the Privy Council to grant special leave to appellants to appeal.

Firstly, this view is contradictory because special leave to appeal is a form of appeal. The Supreme Court Act deals with the appeal procedure.

Secondly, the majority view of adopting the Privy Council’s power of granting special leave, is discretionary. I see no justification for reading into the provision that the power to review is discretionary. For instance, I do not consider that the power to review a conviction or a sentence under s. 37(15) is discretionary. Such a discretion in the Privy Council has limited its power of review. In civil matters this power is only exercised in cases with far-reaching questions of law, or of public importance. In criminal cases its discretion is confined to special circumstances. See generally Halsbury’s Laws of England, 4th ed., Vol. 10 at 366-367, pars 785 and 786. Such an interpretation cuts down the scope of review. It cannot be said that the Supreme Court can review all judicial acts of the National Court.

Thirdly, judicial power under the Constitution belongs to the people. It does not belong to the Queen. See s. 158 of the Constitution; The State v. John Mogo Wonom [1975] P.N.G.L.R. 311. The power granted under s. 155(2)(b) cannot be said to be based on the Royal Prerogative which is exercised by the Privy Council. If our constitutional framers intended this, they should have expressly said so, and elaborated on this special review power as they have done on the special power of the Supreme Court under s. 19 of the Constitution. Furthermore, our constitutional framers had no reason to adopt such a power in the Constitution. The Queen had dominions and colonies over which she had, and has, authority. This power was exercised only in relation to those dominions, and not for appeals within the United Kingdom. See Halsbury’s Laws of England, 4th ed., Vol. 10, 356, par. 770. Such a concept within Papua New Guinea would be unnecessary as we do not have any dominions or colonies. In my humble opinion, the analysis of the special power of the Privy Council does not fit into our legal system. Countries such as Malaysia, Singapore and Fiji, which have decided to retain this special power of the Privy Council, still retain the appeal procedure. Other countries, such as India, have done away with it. We have done away with any power of review by an outside court by s. 155(2)(a) of the Constitution.

With respect, I consider that the majority decision reads too much into the words “inherent power to review” under s. 155(2)(b). The word “review” or “reviewed” has been used constantly in English legislation and judicial decisions to refer to the power of review in the appeal procedure. In a recent case, the English Court of Appeal, sitting as a single judge in its civil jurisdiction, had occasion to consider O. 59, r. 14, subr. (12), part of which reads:

“Provided that an appeal shall not lie to the Court of Appeal without the leave of that Court in respect of a determination of the registrar which has been reviewed by a single judge.” (My emphasis.)

The case is C. M. Van Stillevoldt B.V. v. E.L. Carriers Inc. [1983] 1 W.L.R. 207. At 210 Griffiths L.J said of the word “reviewed”:

“I see the weight of that argument but it is, in my view, to read too much into the use of the word ‘reviewed’ in the proviso. I believe that to be no more than a shorthand way of referring to the fact that there has been an appeal from the registrar.” (My emphasis.)

The end result of my reasoning is that any decision of the National Court under the Organic Law is a judicial act and is reviewable by the Supreme Court.

As to rights of parties, and the procedure as to how they may come before the Supreme Court for review, these are set out under other laws. In the instant case, the Supreme Court Act is relevant.

SUPREME COURT ACT

The Act was originally passed by the Constituent Assembly as a Provisional Act and came into operation, together with the Constitution, on Independence Day. See s. 266(2) of the Constitution. It was intended to implement the jurisdiction of the Supreme Court under s. 162 of the Constitution. This Act covers all acts of the National Court which may be reviewed by the Supreme Court. See s. 4 of the Supreme Court Act. A person aggrieved by a decision of the National Court in any jurisdiction would be entitled to appeal under this provision and, more particularly, under s. 16 of the Act. This right must be exercised in accordance with the provisions of the Act. Under s. 16, such a person can only exercise the right within 40 days of the decision. Mr Balakau has not exercised this right within the required time and he no longer has any standing. He has filed his appeal out of time. The appeal is incompetent. I would uphold the objection on the second ground. On my reasoning, this is the end of the road for Mr Balakau and, indeed, for any party who does not exercise the right within time. This does not in any way affect the power to review under s. 155(2)(b) of the Constitution. When this happens, legally, there is no matter or proceeding before the Supreme Court.

In Avia Aihi v. The State (No. 2) [1982] P.N.G.L.R. 44 I made the observation that the Supreme Court Act should be amended so that the party who does not exercise the right to appeal within 40 days may apply for an extension of time at any time outside the 40-day period. This was the situation under the old Supreme Court (Full Court) Act 1968, s. 34(2), in criminal cases. This must come by legislative amendment and not by judicial pronouncement through an inflated interpretation of s. 155(2)(b).

ANDREW J: The circumstances in which this matter comes before the Supreme Court and its background are set out in the judgment of the Chief Justice and I do not repeat them.

I am in agreement with the reasons of the Chief Justice and accordingly I set out my reasons in brief.

It has long been a rule of the old Electoral Act and now of the Organic Law on National Elections that there is no right of appeal from a decision upon an electoral petition.

Section 220 of the Organic Law on National Elections is as follows:

“S220. A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way.”

There is such finality in electoral petitions, in my opinion, for very good reasons. The electoral process in a democratic system allows the community a free and fair opportunity of electing the candidate that the majority prefers. The Organic Law creates strict provisions before there can be any challenge by electoral petition to the expression of the will of the majority. Such a process is inherently alien to the judicial process and in my judgment the courts may only interfere upon proof of a very high standard of certain well-established principles. To allow appeals in such matters further denies the right of representation by prolonging the process. The community is entitled to know who is its political representative: See generally S.C.R. No. 4 of 1982; Re Delba Biri v. Bill Ginbogh Ninkama [1982] P.N.G.L.R. 342.

The difficulty which now arises is partly due to the fact that the Court of Disputed Returns was abolished and replaced in the Organic Law on National Elections by the National Court.

It was quite clear before that a court of disputed returns, although constituted by a judge of the Supreme Court, did not sit as the Supreme Court but as a special tribunal. It was a peculiar jurisdiction created exclusively by statute and by statute the decision was final and conclusive and without appeal: See Holmes v. Angwin [1906] HCA 64; (1906) 4 C.L.R. 297, Hamersley v. McCabe [1916] WALawRp 13; (1916) 18 W.A.L.R. 130. By s. 216 of the Organic Law, it is now the National Court which hears and determines electoral petitions. It is not a court of disputed returns (see Delba Biri (supra)). The difficulty that arises by such a change is that any attempt to limit an appeal from the National Court may be inconsistent with s. 4 of the Supreme Court Act and with s. 155(2)(b) of the Constitution.

Appeals are the creatures of statute. Section 4(1) of the Supreme Court Act is as follows:

“4(1)   An appeal in accordance with this Act lies to the Supreme Court from a judgment of the National Court.”

This section however is subject to specific provisions relating to specific matters covered by special legislation. The Organic Law on National Elections stems from s. 126(1) of the Constitution, “Elections to the Parliament shall be conducted, in accordance with an Organic Law, by an Electoral Commission.” The Organic Law is a constitutional law and accordingly the general provisions of s. 4(1) of the Supreme Court Act cannot override s. 220 of the Organic Law where it prohibits an appeal to the Supreme Court.

A more difficult area is the Constitution, s. 155(2)(b):

“155(2)         The Supreme Court: ...

(b)      has an inherent power to review all judicial acts of the National Court.”

The section was dealt with at length by the Supreme Court in Avia Aihi v. The State [1981] P.N.G.L.R. 81, and in accordance with the majority judgment the section is clearly a grant of power and jurisdiction to the Supreme Court and it vests in the court an unrestricted authority to review all judicial acts of the National Court.

I am unable to agree with the finding in that case, which was obiter, that a review within the meaning of s. 155(2)(b) has no distinction from an appeal. An appeal, as I have found, is a creature of statute. A law which imposes time-limits on appeals is not rendered unconstitutional by the Constitution which contemplates that there will be statutory time-limits on appeals, e.g. in s. 103(4). The power of review under s. 155(2)(b) is purely discretionary, “of much the same type as that of the Privy Council in exercising what the common law recognizes as its inherent prerogative to grant special leave to appeal, though an applicant has no right by statute to appeal”, see per Kearney DCJ in Avia Aihi v. The State at 92. It is, in my view, a separate and additional power, an inherent one, to any statutory right of appeal. The circumstances in which it may be invoked are established in Avia Aihi’s case. Being of such a unique character I simply cannot see how it can be equated with any statutory appeal process.

Section 37(16) of the Constitution provides that no person shall be deprived by law of a right of appeal against his conviction or sentence by any court that existed at the time of conviction or sentence, as the case may be. There is no similar provision in the Constitution providing a right of appeal in non-criminal matters. Section 220 of the Organic Law is a constitutional law prohibiting an appeal from the result of an electoral petition disputing an election or return. So far as it prohibits such an appeal from the National Court, it is not, in my opinion, unconstitutional. But it flows from the majority judgment in Avia Aihi v. The State [1981] P.N.G.L.R. 81 that the Supreme Court may review the decision in its inherent jurisdiction under the Constitution, s. 155(2)(b) — such decision being a judicial act of the National Court. It follows that where s. 220 purports to prohibit the questioning of the decision “in any way”, it is in conflict with s. 155(2)(b) and is accordingly unconstitutional and furthermore it follows that the decision of the National Court may not be “final and conclusive”. But in my judgment there is nothing unconstitutional in s. 220 whereby it prohibits an appeal and that much of the section is saved by s. 10 of the Constitution.

I would uphold the objection to the competency of the appeal. It follows however from my judgment that the petitioner may still seek to invoke the inherent power of review of the Supreme Court under the Constitution, s. 155(2)(b).

Objection to competency of appeal upheld.

Appeal struck out.

Lawyer for the petitioner: K. Y. Kara.

Lawyer for the first respondent: B. Sakora.

Lawyer for the Electoral Commission: The Acting State Solicitor, B. O. Emos.