SCR No 8 of 1996: Review pursuant to Constitution s155(2)(b); Application by Jeffrey Balakau

• Jurisdiction: Papua New Guinea
• Judge: Amet CJ, Kapi DCJ, Los J
• Judgment Date: 25 October 1996
• Court: Supreme Court
• Docket Number: SCR No 8 of 1996: Review pursuant to Constitution s155(2)(b)
• Judgement Number: SC529

Supreme Court: Amet CJ, Kapi DCJ, Los J

Judgment Delivered: 25 October 1996

SC529

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCR 8 OF 1996

Review pursuant to Constitution Section 155(2)(b)

Application by Jeffrey Balakau

Waigani: Amet, CJ, Kapi DCJ Los J

24 June and 25 October 1996

Constitutional Law — Application to invoke Supreme Courts inherent power — Review of decision of National Court — Section 155(2)(b) Constitution.

Locus standi to invoke inherent jurisdiction — Existing right or interest.

Nature of inherent power to review — Entire, absolute and unqualified — Unrestricted by Acts of Parliament or Common Law.

Practice & Procedure — Filing of appeal out of time — Right of appeal or Leave to appeal statute barred — Supreme Court Act s 17.

Concurrent existence of Right of Appeal or Leave to Appeal, and locus or a right or interest to invoke Court's inherent power — Both can not be invoked concurrently.

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 Section 155(2)(b) of 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.

J Gawi for Applicant

J Kawi for the State

D Cannings for the Ombudsman Commission

BY THE COURT: 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).

BRIEF FACTS

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 7th 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 29th 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 28th October, 1995 the applicant made application to the National Court, seeking leave to apply for judicial review of the Commission's decision. On 8th December, 1995 the National Court refused the application for leave. The applicant filed an appeal against that decision on 2nd February, 1996. On 13th 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 15th 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 Courts inherent power to review the decision of the National Court. Does an applicant who has failed to appeal within 40 days have 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) 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...