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

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Kapi DCJ, Andrew J
• Judgment Date: 27 July 1983
• Court: Supreme Court
• Docket Number: In the Matter of the Organic Law on National Elections
• Judgement Number: SC256

Full Title: In the Matter of the Organic Law on National Elections; Malipu Balakau v Paul Paken Torato and Tiane Openakali [1983] PNGLR 242

Supreme Court: Kidu CJ, Kapi DCJ, Andrew J

Judgment Delivered: 27 July 1983

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) 18 W.A.L.R. 130.

Holmes v. Angwin (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...