I, Mek H. Kamongmenan, Senior Tutor of Law at the School of Law, University of Papua New Guinea and a Lawyer- Parkil Lawyers.
Supreme Court has the power to review all the Election
The Section 220 of the Organic Law states that a decision of the National Court is final and conclusive, and without appeal, and shall not be questioned in any way. Whilst this provision appears to preclude any application by way of appeal to the Supreme Court, the Supreme Court has in a number of cases considered its role as the final judicial authority of the people under the Constitution and considered whether this final power or authority can be restricted by any other Act of the Parliament, and the Supreme Court has considered that s 155(2) of the Constitution does give it an overriding power to review all matters from other courts or judicial bodies. The principles and reasons are expounded in the various cases such as Avia Ahia v The State  PNGLR 81,Balakau v Torato  PNGLR 242, and Sunu & Ors v The State  PNGLR 305. The Supreme Court has ruled in Sunu & Ors v The State that:
"The discretionary power to grant review of a decision of the National Court under section 155(2)(b) of the Constitution should be exercised only where: it is in the interests of justice, there are cogent and convincing reasons or exceptional circumstances, and there are clear legal grounds meriting a review of the decision."
Application by Agiwa  PNGLR 136. This is an application for review of a decision of the National Court wherein the Court found that the petition disputing an election results had complied with the provisions of s 208 of the Organic Law on National Election and it refused to strike it out. The Organic Law provides that an election or return may be disputed by petition addressed to the National Court and not otherwise. Section 220 of the Organic Law states that the decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way.
The Court held that:
- Where a person or a party to proceedings has no right of appeal to the Supreme Court and where there is an important point of law to be determined which is not without merit, the procedure under s 155 (2)(b) of the Constitution is available without the need to meet any other established criteria.
- The Supreme Court Act and the Rules of the Supreme Court are silent on the question of the requirement for leave on an application pursuant to s 155(2)(b) of the Constitution. But clearly, in the circumstances where an applicant must show that there is an important point of law to be determined before the Supreme Court will review a judicial act of the National Court, for all practical purposes the requirement is little different to the usual requirements commonly adopted when leave is required to appeal. This is a natural consequence of the fact that there is no right of review but only the right to make application to the Supreme Court to invoke its inherent power to review a judicial act of the National Court.
- That power is discretionary.
InNali v. Mendeop and the Electoral Commission  PNGLR 128, the first respondent has initiated proceedings before the Court of Disputed Returns disputing the election of the applicant. At the preliminary hearing the applicant sought to dismiss the proceedings at the first instance. The trial judge refused the application and ordered that the petition proceed to trial. The applicant applied to the Supreme Court to seek a review of the decision of the trial judge. The Court in dismissing the application, held that for an application made pursuant to s 155(2)(b) of the Constitution to succeed the applicant must show that it is in the interest of justice; there are exceptional circumstances and there are clear legal grounds. Preliminary objections are not designed to prevent a petitioner pursuing his right to a hearing but to ensure that the court does not waste its time on trivial and vexatious matters.
Yama v. Gubag and the Electoral commission  PNGLR 146.This was an application by the Electoral Commission of Papua New Guinea for an application for judicial review of the decision of Sheehan, J made on 23 October 1997. The application was brought under s 155(2)(b) of the Constitution. The petitioner lost his seat to the first respondent in the 1997 General Elections. The petitioner sought to declare the election of the first respondent null and void before the Court of Disputed Returns. On 22 September 1997, the petitioner failed to appear before the court and the court stuck out the petition. On 23 October 1997 the petitioner appeared before another judge and got his petition reinstated. The second respondent applied to the Supreme Court under s 155(2)(b) of the Constitution to review the decision of the second judge on 23 October 1997 and quash it. The Court in granting the review quashed the decision of the National Court made on 23rd October 1997 and reinstating the order made on 22nd September 1997 held that the another judge of the National Court has no jurisdiction to reinstate a petition, which has been struck out or dismissed and the only recourse for a petitioner in such a case is to apply to the Supreme Court for a review under s 155(2)(b) of the Constitution.
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Reipa and the Electoral Commission v. Bao  PNGLR 232.The respondent filed an Election Petition against the first and second applicants seeking to annul the election of the first applicant as Member of Parliament for Kainantu Open Electorate. The trial judge found that "it was the legal or constitutional duty of the Electoral Commission to ensure the security of ballot boxes such that the failure to so observe would amount to an error or omissions by officers of the Electoral Commission". The trial judge also found that it was the legal and factual responsibilities of the Electoral Commission under the Organic Law on National and Local-level Government Elections to provide and ensure safe custody and care of ballot boxes.
The applicants sought review of the National Court’s decision pursuant to s 155(2)(b) of the Constitution, which provides that where there is no right of appeal to the Supreme Court and where, on merits, there is an important point of law to be determined, the procedure under s 155(2)(b) would apply. In dismissing the application, the Court held that to invoke the procedure under s 155(2)(b) of the Constitution, there must be gross error, clearly apparent on the face of this evidence before the National Court before the Supreme Court can grant a review; or there are cogent and convincing reasons or exceptional circumstances shown to warrant such a review. The applicants have not shown that there has been a gross error or some serious mis-statement of the law such that the Supreme Court can and should intervene.
Electoral Commission of PNG and Simbi v. Masueng  PNGLR 171.The plaintiffs were seeking review of the decision in respect of a Local Level Government election petition filed by the respondent. The application commenced as a review under Order 16 of the National Court Rules then changed to a Section 155(3) Constitution, application for review. The second plaintiff conducted the Local Level Government Elections for the Aitape-Lumi Open Electorate. He was appointed by the Electoral Commissioner as the Returning Officer for that electorate; however his name was not gazetted in the National Gazette as the Returning Officer for that electorate.
The first respondent was a losing candidate in Ward 7 in the Aitape East Local Level Government. He filed an election petition the Aitape District Court seeking an order to invalidate the results of the Ward 7 election in the Aitape East Local Level Government election. The ground for his petition was that, the second plaintiff was not gazetted as the Returning Officer to conduct the Local Level Government elections. The first respondent therefore challenged the legal authority of the second plaintiff in conducting these elections. The Principal Magistrate of the Aitape District Court declared that the second plaintiff’s appointment as Returning Officer for the Aitape-Lumi Open Electorate was null and void and of no effect. In dismissing the application for review, the Court held that the appointment of a Returning Officer pursuant to s19 of the Organic Law on National and Local Level Government Elections is by publication in the National Gazette. That statutory requirement is mandatory. The second plaintiff, Peter Simbi, was not legally appointed as the Returning Officer for the Aitape-Lumi Open Electorate pursuant to s19 of the Organic Law on National and Local Level Government Elections. Hence he did not have lawful authority to conduct the Aitape-Lumi Local Level Government Elections. The second plaintiff’s purported appointment was not an appointment pursuant to s 21 of the Organic Law on National and Local Level Government Elections as it was not a case of emergency. A Returning Officer cannot conduct an Election unless he is duly appointed under s 19 of the Organic Law. That is a fundamental jurisdictional issue. As the elections in the whole of Aitape-Lumi Open Electorate was conducted by a person who had no authority in law to conduct such elections, the purported exercise of such authority affected all the Ward elections in that electorate thereby rendering the result null and void.
Avei and the Electoral Commission v. Maino  PNGLR 157.This matter relates to judicial review applications sought by three affected parties, being Mr. Avei the successful candidate, the Electoral Commission and Sir Charles Maino the Petitioner under s 155 of the Constitution. Mr. Avei and the Commissioner are the applicants in these review applications. Sir Charles Maino is the respondent in each application. The respondent asks the Court to dismiss the review applications claiming that the Supreme Court lacks jurisdiction to entertain election disputes which, under s 220 of the Organic Lawon National and Local Level Government Elections gives exclusive jurisdiction for the hearing of election disputes to the National Court. This review was the decision of the Court in Maino v. Avei and the Electoral Commission  PNGLR 178 in which during the course of the trial of the election petition it ordered recount of the ballot papers. The Court in granting the motion of the respondent and dismissing the application held that the power of review given to the Supreme Court under the Constitution is not restricted in any way. Avia Ahi v The State  PNGLR 81 adopted and applied. The fact that exercise of the power of review is discretionary places no limit on the jurisdiction of review itself nor does the discretionary nature of review imply any restriction on the right of any person to invoke such jurisdiction. Resort to review should normally be entertained once only after the body empowered to determine the issues concludes its findings. Any stipulated appeal process should be pursued before the Court is asked to intervene by way of review. But the power of review, including the timing of such review always lies within the discretion of the Supreme Court.
Mek Hepela Kamongmenan LLB