[1999] PNGLR 1

PAPUA NEW GUINEA

[supreme court of justice]

review pursuant to constitution section 155(2)(b)

JIMSON SAUK PAPAKI

V

DON POMB POLYE; and

RUBEN [reuben] KAIULO, ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA

waigani: salika, injia, akuram jj
2 July 1999

Judicial Review — Decision of National Court invalidating election return of member of National Parliament — Power of Supreme Court to Stay enforcement of National Court decision pending determination of review — Constitution, s 155(2)(b) & (4); Organic Law on National and Local Level Government Elections, ss 220 & 226; Supreme Court Act s 19.

Facts

This is an interlocutory application by the applicant Mr Jimson Sauk Papaki for stay of enforcement of the decision of the National Court made on the 29 April 1999. His Honour Woods J. presiding in EP No. 76 of 1997 declared the election of the applicant as Member for Kandep Open Electorate in the National Parliament not duly elected. The election was declared void pursuant to provisions of the Organic Law on National and Local-Level Government Elections ("OLNE"). 

Held

1.	As a matter of constitutional law, pursuant to Organic Law on National and Local-Level Government Elections s 226 read in conjunction with s 220, the decision of the National Court, insofar as it concerns the applicant’s right to remain in office as the Member for Kandep Open and hence a Minister in the National Government, was final and self-executing.

2.	It is settled now that notwithstanding Organic Law on National and Local-Level Government Elections s 220, Constitution s 155(2)(b) gives the Supreme Court an inherent power to review the National Court decision made under Organic Law on National and Local-Level Government Elections.

3.	A person aggrieved by a decision of the National Court under OLNE, in particular a person whose election is declared void or unduly elected, has no right of appeal under primary legislation, the OLNE. The inherent review power of the Supreme Court under s 155(2)(b) Constitution is a power which he may invoke but the exercise of that power by the Supreme Court is discretionary.

4.	Section 155(4) of the Constitution empowers the Supreme Court to make "in such circumstances as seem to (it) proper … such other orders as are necessary to do justice in the circumstances of a particular case. Avia Aihi v State [1981] PNGLR 81 applied.

5.	It would not be proper to utilize s 155(4) of the Constitution to defeat the clear dictates of the Organic Law on National and Local-Level Government Elections s 220 and in particular s 226.

6.	The application is therefore misconceived, as it is not based on sound legal position.

Papua New Guinea cases cited

Avia Aihi v State [1981] PNGLR 81.
Post PNG Ltd v Westpac Bank (PNG) Ltd [1999] PNGLR 582.
The State v Commissioner for Corrective Institution Services and Daniel Mollen (1996) SC513 Unreported.

Counsel

G Sheppard with D Stevens, for the applicant.
P Dowa, for the first respondent.
A Kongri, for the second respondent.

2 July 1999

By the court. This is an interlocutory application for stay of enforcement of the decision of the National Court made on 29 April 1999, Woods J presiding, in proceedings EP No. 76 of 1997, in which His Honour, declared the election of the applicant as Member for the Kandep Open Electorate in the National Parliament "not duly elected and the election void" pursuant to provisions of the Organic Law on National and Local Level Government Elections ("OLNE"). On 5 May 1999, the applicant filed an application for review of that decision by the Supreme Court under Constitution, s 155(2)(b). This application for stay is made pending the determination of that substantive review application. The application for stay is made under s 155(4) of the Constitution.

At the time of the National Court decision, the applicant was the incumbent national Minister for the Ministry of Rural Development. In his affidavit filed in support of the application, he cites his inability to complete the task allocated to him under that Ministry, as a ground for seeking the stay. He also cites the likelihood of success in the review, saying the first respondent is now facing criminal charges in the District Court at Mt. Hagen in respect of the alleged destruction or stealing of the very ballot boxes which the National Court found to have been missing thereby depriving some 4,000 eligible voters of their right to vote.

Mr Sheppard who appeared for the applicant submits that this Court has jurisdiction conferred by Constitution s 155(4), and by analogy s 19 of the Supreme Court Act, to entertain the application. He submits that the test to be applied is not the prevailing one which is that the applicant should show "special" or "exceptional circumstances" but a lesser one, that is the applicant for stay should demonstrate "a reason or an appropriate case to warrant the exercise of discretion in his favour": This latter test was first advocated by the Supreme Court in The State v The Commissioner for Corrective Institutions Services and Daniel Mollen SC513 (1996) and later endorsed by the Supreme Court recently in Post PNG Ltd v Westpac Bank (PNG) Ltd [1999] PNGLR 582. Mr. Shepherd submits the reasons given in the present case meet both tests.

Mr Dowa for the first respondent submits this application is misconceived because the decision of the National Court is self-executing and there is nothing to be stayed. Alternatively, he submits there are no sound reasons to depart from the prevailing test and the applicant has not met that test.

In our view, this application is clearly misconceived because it has no sound legal basis. As a matter of constitutional law, pursuant to OLNE, s 226 read in conjunction with s 220, the decision of the National Court, insofar as it concerns the applicant's right to remain in office as the member for Kandep Open and hence a Minister in the national government, was final and self-executing. Sections 220 and 226 provide:

"Section 220 Decision to be Final.

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

"Section 226 Effect of Decision.

Effect shall be given to a decision of the National Court as follows:-

(a)	if a person returned is declared not to have been duly elected, he shall cease to be a member; and

(b)	if a person returned is declared to have been duly elected, he may take his seat accordingly; and

(c)	if an election is declared absolutely void a new election shall be held."

Upon pronouncement of the decision on 29 April 1999, the applicant ceased to be a member of the National Parliament and a new election for the election of a new member became due. Therefore, the decision of the National Court having become self-executed by operation of law, there is nothing to be stayed.

Further, it is settled now that notwithstanding OLNE s 220, Constitution s 155(2)(b) gives the Supreme Court an inherent power to review the National Court decision made under OLNE. This is a discretionary power, which is to be exercised in an applicant's favour only in cases where there are exceptional circumstances or cogent and convincing reasons or it is in the interest of justice. Constitution, s 155(4) empowers the Supreme Court to make "in such circumstances as seem to (it) proper .... such other orders as are necessary to do justice in the circumstances of a particular case." The Supreme Court in Avia Aihi v The State [1981] PNGLR 81, which originally developed the review principle in s 155(2)(b), also considered s 155(4) and said the power under s 155(4) cannot be used "to make an order contrary to specific dictates of the Constitution" (per Kidu CJ, at p.87), or not to "disregard or override clear provisions of the statutes" (per Kapi J at p.107); it is only available "so to tailor their remedial process to the circumstances of the individual case as to ensure that the primary rights of parties before them are protected" (per Kearney Dep CJ, at p.91; per Kapi J at p.107).

A person aggrieved by a decision of the National Court under OLNE, in particular a person whose election is declared void or unduly elected, has no right of appeal under the primary legislation, that is the OLNE. The inherent review power of the Supreme Court under s 155(2)(b), is a power which he may invoke but the exercise of that power by the Supreme Court is discretionary. It is arguable whether an applicant's invocation of the review jurisdiction of the Supreme Court in s 155(2)(b) is as of right. If it were then, the likely success of that review could be protected by a stay order under s 155(4). This point was not argued before us and we are not in a position to decide it. All we can say now is that it would not be proper to utilise Constitution s 155(4) to defeat the clear dictates of OLNE, s 220, and in particular s 226. It is the clear intention of s 226 that a person whose election is declared void or unduly elected is final and conclusive, and for all intent and purposes he ceases to be a member of the Parliament until another person is duly elected to fill the existing vacancy created by his departure or the Supreme Court makes an order otherwise.

For these reasons, we dismiss the application with costs to the respondent.

Lawyer for the applicant: Maladina Lawyers.
Lawyer for the respondent: Dowa Lawyers.