Application by Jeffrey Balakau, Review Pursuant to s155(2)(b) of the Constitution [1996] PGLawRp 782; [1998] PNGLR 437 (25 October 1996)

[1998] PNGLR 437

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REVIEW PURSUANT TO THE CONSTITUTION
SECTION 155(2)(B)

APPLICATION BY JEFFREY BALAKAU

WAIGANI: AMET CJ; KAPI DCJ; LOS J
24 June and 25 October 1996

Facts

The applicant is seeking leave of court to apply for judicial review pursuant to s 155(2)(b) of the Constitution after he has lost his right of appeal.

Held

1. Any person affected or aggrieved by the judicial decision of the National Court and lacking any statutory right of appeal may nevertheless make application to invoke the Supreme Court’s inherent and discretionary powers to review, under s 155 (2)(b) of the Constitution.
   
2. Grant of leave may only be allowed where applicant has advanced convincing reasons to satisfy the Court as to why leave should be granted in his favour. Satisfactory explanation must be given for non-compliance of statutory requirements and that an arguable case on the merits ought to be demonstrated.
   

Papua New Guinea cases cited

Avia Aihi v The State [1981] PNGLR 81.

Avia Aihi v The State (No. 2) [1982] PNGLR 44.

Counsel

J Gawi, for applicant.
J Kawi, for the State.
D Cannings, for the Ombudsman Commission.

25 October 1996

AMET CJ; KAPI DCJ; LOS J. This is an application made pursuant to s 155(2)(b) of the Constitution seeking to invoke the inherent power of the Supreme Court to review the decision of the National Court in refusing to grant leave to the applicant to apply for judicial review of the decision of the Ombudsman Commission (the Commission) to refer him to the Public Prosecutor for prosecution before a Leadership Tribunal (the Tribunal).

The applicant Jeffrey Balakau is the Provincial Member for the Enga Province in the National Parliament. He is subject to the Organic Law on the Duties and Responsibilities of Leadership ("Organic Law").

By letter dated 7 October, 1993 to the applicant the Commission advised him of a series of allegations of misconduct in office under the provisions of the Organic Law. By letter dated 29 October 1993 the applicant responded to each of the allegations. A period of 1 year and 10 months elapsed without any further communication by the Commission to the applicant. Then by letter dated 23rd August 1995, the Commission advised the applicant that it was giving him notice under s. 20 (2) of the Organic Law that it was referring him to the Public Prosecutor for prosecution, for alleged misconduct in office.

On 28 October 1995 the applicant made application to the National Court, seeking leave to apply for judicial review of the Commission’s decision. On 8 December 1995 the National Court refused the application for leave. The applicant filed an appeal against that decision on 2 February 1996. On 13 February 1996 the Commission and the Public Prosecutor filed notice of objection to the competency of the appeal, as having been filed out of time. On 15 March 1996 the Supreme Court ruled that the appeal was filed out of time and therefore it was incompetent and thus dismissed it.

Issues to be determined

The following are the issues to be determined in this application, arising from these factual circumstances:

1. Locus Standi
   

The first issue is as to the applicant’s locus standi to institute proceedings seeking to invoke the Supreme Court’s inherent power to review the decision of the National Court. Does an applicant who has failed to appeal within 40 days has locus standi to invoke the Supreme Courts jurisdiction under s 155(2)(b) of the Constitution? Does such an applicant have an existing right or interest, on the basis of which he could claim locus standi?

2. Inherent Power of the Supreme Court
   

What is the nature of the inherent power of the Supreme Court to review judicial acts of the National Court? If the applicant does have existing right or interest and thus locus standi, should leave be granted to him to make application to the Court to invoke its inherent power to review the decision of the National Court. What are the bases or criteria for the grant of that leave?

3. If leave be granted, then whether in the exercise of its discretion the court should grant the remedies sought.
   

The Law

Section 155 (2) and (4) of the Constitution provide that:

"(2) 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.

(3) ...

(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case."

In the case of Avia Aihi v The State [1981] PNGLR 81, the court held that s 155(2)(b) invested the Supreme Court with an unfettered discretionary jurisdiction to hear an application to review despite the applicant having lost the right to appeal or to apply for leave to appeal. The Court held that this discretionary jurisdiction should only be exercised in exceptional circumstances; the onus being upon the applicant to persuade the court to exercise such discretion.

Chief Justice Kidu said at p 87:

"We cannot cut down the powers of this Court if the Constitution has invested it with extra jurisdiction or power. If this Court has been granted inherent powers by the people through the Constitution, we must be bold in stating the fact. The inherent power of the Supreme Court to review all judicial acts of the National Court emanates from the people through the Constitution. What the nature or the extent of this power might be, it does not derive from any statute or the common law or any prerogative powers of persons or bodies outside Papua New Guinea."

At p 88 the former Chief Justice continued:

"What s 155(2)(b) gives is a power. This is obvious from s 162 of the Constitution. The National Court’s ‘inherent power to review any exercise of judicial authority’ (s 155(3)(a)) is subject to removal or restriction (s 155(3)(e)) whereas the Supreme Court’s inherent power under s 155 (2) (b) is not.

If one applies the dictates of the Constitution - that is, ‘Each Constitutional Law is intended to be read as a whole’ and ‘All provisions of, and all words, expressions and propositions in a Constitutional Law shall be given their fair and liberal meaning’ (Sch.1.5) - then s. 155 (2) (b) must mean more than being descriptive of the nature of the Supreme Court. It cannot and should not be assumed that the concept of inherent power to review in s. 155 is necessarily what was taken to be the case before 16th September 1975. The common law has no application in post Independence Papua New Guinea if it is in conflict with statutes and the Constitution. The powers and the jurisdiction of the Supreme Court derive not from any statute or the common law but from s. 162 of the Constitution. The common law should not and cannot be used to cut down powers given to the Supreme Court by the Constitution. As a creature of the Constitution, it cannot be otherwise.

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."

Deputy Chief Justice Kearney said, at p 92:

"This court, as part of the National Judicial System, is invested with the Judicial authority of the people: the 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 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 [sic].

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 [sic].

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).

I consider that the applicant, a person affected by a judicial act of the National Court, lacking now any right to have that act reviewed, may yet ask this court to exercise its inherent and discretionary power to review, under the Constitution s 155(2)(b); and the court may hear the appeal.

Whether or not this court would exercise that power and grant leave to appeal, depends on the circumstances of the particular case. It is wholly discretionary, but I think that in general leave would be granted only in exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity."

The applicant Avia Aihi was thus given leave to adduce evidence in support of her application for leave to appeal. In the subsequent application for leave to appeal in Avia Aihi v The State (No. 2) [1982] PNGLR 44, the Court enumerated the following principles upon which the inherent jurisdiction to review would be exercised:

1. Convincing reasons;
   
2. Satisfactory explanation for the delay;
   
3. Arguable case on the merits;
   
4. Whether leave is granted or not is wholly in the discretion of the court;
   

These are by no means exhaustive.

Applicant’s submissions

The applicant submitted that ss 4 and 14 of the Supreme Court Act created the right of appeal to the Supreme Court from a decision of the National Court. Section 17 of the Act regulates the prosecution of that statutory right to appeal, by stipulating that such a right must be enforced within 40 days from the date of the judgement being challenged. It was submitted that s 17 did not have the effect of extinguishing rights created by ss 4 and 14.

In relation to locus standi, the applicant submitted that in view of the fact that his statutory right to appeal is statute-barred, the question was whether he had standing under common law to seek a review of the decision by the National Court. It was submitted that there is no constitutional right under s 155(2)(b) of the Constitution to seek judicial review of National Court decisions, and secondly that the Supreme Court had no constitutional power under s 155(2) to review any judicial acts of the National Court. He submitted that s 155(2)(b) is merely declaratory in that the substantive law on judicial review is essentially the common law. This is the combined effect of ss 59(1), 60, 155 and 162 of the Constitution, it was submitted. At best, all that can be said of s 155 is that it is a grant of jurisdiction but only to the extent that it merely confirms the Supreme Court’s jurisdiction at common law to make orders in the nature of prerogative writs upon judicial review.

It was further submitted that all the cases brought before the Supreme Court under s 155 were wrongly decided for the following reasons; the nature of the court’s jurisdiction was not defined; the nature of the applicable rules of substantive law were not identified and in particular the source of such rules; and the nature of the legal right or interest sought to be vindicated were not properly characterised. It was submitted that appeal proceedings where the court is asked to exercise its appellate jurisdiction are quite separate from applications for judicial review where the court is asked to exercise its supervisory jurisdiction. It was added that it would follow that an unsuccessful party in an appeal where the appeal has been disposed of on the merits, is not precluded from applying for a judicial review. In such a case the application for judicial review would be on a rather limited number of grounds as are available under the common law.

It was submitted that the power to review under s 155 (2) (b) of the Constitution has its basis in common law in that it is akin to the prerogative powers when the court is considering the grant of prerogative writs. It was submitted therefore that this power of review is available irrespective of whether or not there is a right of appeal; it is also available where the statute in question takes away the right of appeal. They are two quite separate or distinct powers. The exercise of one does not depend on the other. They can both be exercised concurrently.

It was submitted that the court’s jurisdiction to entertain an application for judicial review is a common law supervisory jurisdiction which the Constitution has adopted under the reception Sch. 2.2 and which is also acknowledged under s 162 of the Constitution. The substantive law applicable in judicial review is therefore the common law as adopted by the Constitution.

And finally it was submitted that in so far as the applicant has to show that he had locus standi to institute and prosecute this proceedings, it was submitted that, being the person aggrieved by a decision of the National Court he has substantive legal interest in this matter to invoke the jurisdiction of this Court as a superior court in its supervisory jurisdiction.

Respondents’ submissions

The respondents had submitted simply that the power of the Supreme Court to grant a review under s 155(2)(b) of the Constitution is discretionary. It should only be exercised where:

(a) it is in the interest of justice.

(b) there are cogent and convincing reasons or exceptional circumstances.

(c) There are clear legal grounds meriting the review of the decision.

In deciding whether there are cogent and convincing reasons, the court should consider the following factors as being relevant:

(a) The reasons for failing to appeal within time; and

(b) The merits of the case to be argued.

It was submitted that this being the first case where an applicant is seeking to have his appeal reviewed by the Supreme Court following the dismissal of that appeal by the same court as being incompetent, the matter should end here because the courts should not countenance such practices. To now re-hear the matter after it was dismissed would open the flood gates to all litigants to always seek a review under s 155 (2) (b) where appeals were dismissed or determined on procedural grounds as well as being decided on merits.

It was submitted further that the applicant has failed to discharge the onus of showing that there is some substantial injustice manifested in his case or that his case is one of special gravity or that there is reason to apprehend that justice has miscarried. Also he has failed to show cogent or convincing reasons or exceptional circumstances warranting a review. For these reasons, it was submitted, leave to apply for review should be refused.

Facts

The National Court refused application for leave to apply for judicial review on 8 December 1995. The appellant filed appeal by notice of motion on 2 February 1996. On the 5 February 1996 lawyers for the applicant wrote to the Public Prosecutor advising of the filing of the appeal to the Supreme Court on 2 February 1996 and of their understanding that, taking the courts vacation into account, the 40 days appeal period was due to expire on 24 February 1996. As it transpired this was a misconception on the lawyer’s part.

It was submitted that this was the only reason that the appeal was filed out of time, because of the misunderstanding that the vacation period was not taken into account for the purposes of determining the 40 days period under s 17 of the Supreme Court Act.

The appeal was consequently dismissed as being incompetent because it was filed out of time.

Conclusion
Locus Standi or Interest of the applicant

We consider that the applicant, a person affected or aggrieved by the judicial decision of the National Court and lacking now any statutory right to have that decision reviewed, may nevertheless make application to the Supreme Court to exercise it’s inherent and discretionary power to review that judicial decision under s 155(2)(b) of the Constitution. This interest or right in such an aggrieved applicant is the same right which enabled Avia Aihi to make application for leave to apply for review by the Supreme Court: Avia Aihi v The State (supra).

As the inherent power to review is in respect of judicial acts of the National Court, we consider that any person who is directly aggrieved or affected by a judicial act or decision of the National Court has sufficient interest or right to make application to the Supreme Court to invoke this inherent power to review such judicial act or decision. We also hold that it is a permanent and original source of power that is derived from the people of Papua New Guinea, through the Constitution, which invests the judicial authority of the people in the Court. That is the exclusive and ultimate source of the Court’s authority. This power of review of this Court is plenary, that is that it is entire, unqualified and absolute. In the absence of express constitutional provision limiting it, that power and its exercise cannot be restricted by any act of Parliament or external common law criteria. We adopt in their entirety the views expressed by the former Chief Justice Kidu and Deputy Chief Justice Kearney in Avia Aihi v The State (supra) quoted earlier, as being entirely relevant and applicable.

In the end result, though his right of appeal under the Supreme Court Act has been extinguished, nevertheless he still has interest and thus standing to make application to the Supreme Court to invoke its inherent power to review the judicial decision of the National Court, which the applicant is affected and aggrieved by.

We would add though that this interest or right to invoke this power, whilst it exists concurrently, cannot be invoked concurrently with the right of appeal procedures enabled under subordinate statutes such as the Supreme Court Act. It is a reserve supervisory power that is available to the Court, to be invoked in the discretion of the Court upon good grounds being established.

As with other discretionary jurisdictions, the applicant ought first to have pursued his rights of appeal or review under appropriate primary legislation, and only when those avenues have been fully exhausted might he seek to invoke this reserve jurisdiction of the Court.

It would not be appropriate or permissible to seek to invoke this jurisdiction without first having pursued the rights of appeal or review under relevant legislation.

Application for leave

The next issue then is whether the applicant should be granted leave, in the discretion of the court to apply for judicial review. The principles upon which this discretionary power is invoked is sufficiently enumerated in Avia Aihi v The State (2) (supra). The grant of leave being wholly in the discretion of the Court is not granted as a matter of course. The applicant must first advance convincing reasons as to why leave should be granted in his favour. Secondly, he must advance satisfactory explanation for delay or default in complying with the statutory time period facilitating the right of appeal, and thirdly, there must be demonstrated, an arguable case on the merits.

Applying then these principles to the short facts of this case, we are not satisfied that a satisfactory explanation has been advanced for the delay or default in filing the appeal within time. The ignorance of the law or misconception as to the computation of the time within which appeal is to have been filed under the Act is really not a satisfactory explanation. There are no convincing reasons advanced as to why leave should be granted in the applicant’s favour. Finally, the proposed grounds of review that the National Court had erred in law in finding that the Commission had not exceeded it’s jurisdiction in the conduct of it’s investigations against the applicant and that the Commission had not failed to comply with the rules of natural justice do not sufficiently establish an arguable case on the merits.

In any event the process of the Leadership Tribunal has not yet commenced and the applicant has adequate opportunity to be accorded natural justice and due process at the hearing.

Leave to apply to the court to review the decision of the National Court is thus denied.

Lawyer for the applicant: Joe Wal Lawyers.
Lawyer for the State: Solicitor General.
Lawyer for the Ombudsman Commission: D. Cannings.