Electoral Commissioner of Papua New Guinea v Itanu [2008] PGSC 8; SC915 (21 April 2008)

SC915

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR No. 5 & 6 of 2008

BETWEEN:

ANDREW TRAWEN, Electoral Commissioner
of Papua New Guinea
First Applicant In the Supreme Court of
Justice at Waigani
Papua New Guinea

SCR 5 of 2008

Application under Section 155 (2) (b) of the Constitution
And in the Matter of Part XVIII of the Organic Law On National and Local Level Government Elections

AND:

ANDREW TRAWEN, Electoral Commissioner
First Applicant

AND:

JOHN ITANU, Returning Officer for
South Bougainville Open Electorate
Second Applicant

AND:

STEVEN PIRIKA KAMMA
First Respondent

AND:

MICHAEL LAIMO
Second Respondent

SC Rev 6 of 2008

Application under Section 155 (2) (b) of the Constitution
And in the Matter of Part XVIII of the Organic Law
on the National and Local Level Government Elections
of Papua New Guinea

BETWEEN:

MICHAEL LAIMO
Applicant

ANDREW TRAWEN, Electoral Commissioner
Of Papua New Guinea
First Respondent

AND:

JOHN ITANU, Returning Officer for
South Bougainville Open Electorate
Second Respondent

AND:

STEVEN PIRIKA KAMMA
Third Respondent

Waigani: Kapi CJ
2008: 9, 21 April

NATIONAL ELECTIONS - Constitution, s 155 (2) (b) on Election Cases – Leave is not required to review decision of the National Court.

NATIONAL ELECTIONS - The Supreme Court Election Petition Review Rules 2002 (as amended), sub division 1 r 1 and 2 requires leave as a valid provision.

Counsel:

A. Kongri, for the the first and second applicants (SCR 5 of 2008)
J. Nanei, for applicant (SCR 6 of 2008)
R. Pato, for the respondents (SCR 5 & 6 of 2008

Cases cited:

Avia Aihi v The State [1981] PNGLR 81.
Application By Herman Leahy (Unreported Judgment of the Supreme Court dated 15 December 2006 (SCR 34 of 2005).

Legislations cited:

Constitution
Supreme Court Act
Supreme Court Rules
Supreme Court Election Petition Review Rules
Organic Law on National Government and Local Level Governments Elections

21 April, 2008

1. KAPI CJ: The election petition in this matter (EP 11 of 2007) was tried by Kandakasi J and he handed down his decision on 21 February 2008. He made the following orders:

"1 An order in the form of a declaration that declaration of Honourable Michael Laimo as the duly elected member of South Bougainville Open Electorate in the 2007 National Parliament Elections is null and void.

2. Subject to the immediately following order, the Electoral Commission shall conduct a recount of all the ballot papers in the election for the South Bougainville Open Electorate in the 2007 National Parliament Elections.
   
3. The ballot papers in Ballot Box number 0219 shall be excluded from the recount ordered under term 2 of these orders.
   
4. The recount shall take place within no later than the one 30 days from today at a suitable venue to be determined by the Electoral Commission in consultation with lawyers representing all the parties and with the approval of the Court; on a day or days as are agreed to by all the parties with approval of the Court; during such times also are agreed to by the parties through their lawyers and with the approval of the court and to be general superintendence of the Court.
   
5. The results of the recount shall be provided to the Court with all the appropriate official documentation within no later than 7 days of the completion, following which the Court shall then provide copies of all the documentation to the parties and the Court will then reconvene on a date to be announced at which time the court shall be at liberty to declare winner of the election unless there are real and serious issues on the results of the recount in which cases the Court shall receive such evidence as appear appropriate including an order for a by-election if need be.
   
6. Costs of the petition are awarded to the petitioner Mr Kamma, which costs shall be agreed within 14 days if not taxed
   
7. The petitioner’s deposit of K5,000.00 is ordered to be refunded to him forthwith."
   

2. Andrew Trawen, the Electoral Commissioner filed an application for leave for review on 28 February 2008 in accordance with sub-division 1 rule (1) and (2) of the Supreme Court Election Petition Review Rules 2002 (as amended) (Rules). This is Supreme Court Review 5 of 2008.

3. Michael Laimo the third respondent in the election petition, filed another application for leave for review of the same decision in accordance with sub-division (1) and (2) of the Rules on 5 March 2008. This is Supreme Court Review 6 of 2008.

4. An application for leave for review may be made before a Judge under sub-division 1, r 9 of the Rules and these two applications came before me for determination.

5. Both applications for review raise the same preliminary point; namely, that the requirement for leave for review by the Rules is inconsistent with s 155 (2) (b) of the Constitution and therefore invalid, and consequently, leave is not required. This is the first time the Rules have been applied and it was considered appropriate to deal with the issue on its own. I heard the preliminary issue together in the two applications for leave for review.

6. The arguments by the applicants may be briefly summarized as follows. The inherent power of the Supreme Court under s 155(2)(b) of the Constitution is not made subject to any law or regulation as is the case with right of appeal under s. 37 (15) of the Constitution. The right of appeal is regulated in accordance with the law (Supreme Court Act and the Supreme Court Rules).

7. In absence of any regulation by an Act or Rules, the Supreme Court has developed the kinds of cases that may come before it and the grounds on which a case may be reviewed. So far as it is relevant to the preliminary point raised in these two cases, the Supreme Court determined the criteria beginning with the leading case of Avia Aihi v The State [1981] PNGLR 81. Over the years, the Supreme Court has developed 3 categories of cases:

1. Where an applicant who has a right of appeal under the Supreme Court Act but has lost his right of appeal, such an applicant may invoke the right to review under s 155 (2)(b) by leave of the Supreme Court. The leave required relates to why the applicant allowed the appeal period to expire and he has to satisfy the Court why he should be given another opportunity to have his case reviewed by the Supreme Court. The leave to review was at the absolute discretion of the Court.
   
2. Where right of appeal was prohibited by statute such as s 220 of the Organic Law on National Government and Local Level Governments Elections. Such an applicant did not have to apply for leave as set out in category 1. The Court also developed the grounds on which a case may be reviewed. This will be considered when the question of leave is considered.
   
3. Likewise, where there was no way of going to the Supreme Court, such an applicant did not have to apply for leave.
   

8. A full discussion on the various categories are set out in Review Pursuant to Constitution, Section 155 (2)(b); Application By Herman Leahy (Unreported Judgment of the Supreme Court dated 15th December 2006, SC855.

9. It is submitted that election petition review falls under category 2 and, therefore, the applicants argue that the requirement for leave is inconsistent with s 155 (2) (b) of the Constitution and therefore invalid. The consequence of this conclusion is that leave is not required in election petition reviews.

10. On the other hand, it was submitted that the requirement by the Rules for leave for review is not inconsistent with s 155 (2)(b) of the Constitution. It was submitted that whether leave is required or not is in the exercise of discretion of the Court and as I pointed out earlier the court requires leave in one category of cases and leave is not required in two categories of cases.

11. Counsel urged that if this question involve a constitutional issue, I should consider a reference to the Supreme Court under s 18 (2) of the Constitution.

12. I will deal first with the question whether the question involves a constitutional issue. The nature of the question raised in my opinion does not involve a constitutional issue. The question of leave for review is not raised by the terms of s 155 (2)(b) Constitution, it is a principle of underlying law developed by the Supreme Court in the absence of any expressed terms under s 155(2)(b). The decision of the Supreme Court in category 2 is a judicial act by nature and may be varied or changed by any written law. It is therefore not a constitutional issue.

13. On the other hand, Rules by nature are delegated legislation made pursuant to s 184 of the Constitution. The question; can a delegated legislation override a decision of the court is not a constitutional issue.

14. The question of the validity of the Rules has not been raised under s 10 of the Constitution. Section 155 (2) (b) does not say whether leave is required or leave is not required. Whether leave is required is left to the discretion of the Court.

15. The law has been changed by the Rules. The question is when a provision of the Rules is inconsistent with a decision of the Court, which one prevails. I am not aware of any principle of law which gives the status of a court decision over the provisions of written law. In fact any written law can vary or change a court decision within the ambit of its powers.

16. The provision of the Rules is in fact contrary to the decision of the Supreme Court where the Rule (Sub-division 1 r 2) requires that a review lies to the Supreme Court by leave only.

17. The consequences of the rule is that it has changed the law on the question of leave. The rule prevails and leave for judicial review is validly required.

18. Consequently the applicants should list their applications for leave for review to be dealt with on the merits before a single Judge of the Supreme Court.

Nonggorr & Associates: Lawyers for Applicant (SCR 5 of 20088)
J.B Nanei: Lawyer for Applicant (SCR 6 of 2008)
Steeles Lawyers: Lawyers for the Respondents