Section 220 of the Organic Law on National and Local-level Government Elections is one of the strongest privative provisions in Papua New Guinean law.
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.
“Final”, “conclusive”, “without appeal”, and “shall not be questioned in any way”. The drafter was not relying on a single formula.
So the ordinary appellate route to the Supreme Court under the Supreme Court Act (Chapter 37) is not available from a decision on an election petition. See appealing a National Court decision for the ordinary position.
The Constitution
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.
Section 155(2)(a) and (b) confer two different things: a jurisdiction as final court of appeal, and an inherent power to review all judicial acts of the National Court.
Section 220 of the Organic Law removes the appeal. The inherent power of review in paragraph (b) is conferred by the Constitution itself, and a decision on an election petition is a judicial act of the National Court.
Note also section 155(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.
The distinction between appeal and review is fundamental. An appeal, where available, allows the merits to be re-argued. A review under section 155(2)(b) is directed at the judicial act — at whether the Court acted within its jurisdiction and according to law — not at whether the Judge reached the better view of the evidence.
A party dissatisfied simply with the findings of fact on a petition has, in practical terms, no remedy. Section 220 means what it says.
The Supreme Court Rules
An application for review under Constitution section 155(2)(b) is made to the Supreme Court under the Supreme Court Rules 2012, which prescribe the practice and procedure of that Court.
The application is distinct from an appeal, and the documents and grounds must be framed accordingly. Move promptly: delay is a material consideration on any application invoking an inherent discretionary power.
Two things can still be dealt with in the National Court, and neither is affected by section 220.
Review of taxation. Rule 19(4) of the Election Petition Rules 2017: a party aggrieved by the taxation of costs may, within seven days after the taxation, apply to a Judge of the National Court for a full review of the taxation. See costs.
Relief from the Rules. Rule 22(1): the Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises — a power exercised in the proceeding, not after its determination.
The decision takes effect
(a) if a person returned is declared not to have been duly elected, he shall cease to be a member; (b) if a person not returned is declared to have been duly elected, he may take his seat accordingly; (c) if an election is declared absolutely void a new election shall be held.
Section 221 requires the Registrar, after the trial, to promptly forward to the Clerk a copy of the order of the Court.
A declaration under section 212(1)(f) takes effect on the terms of section 226(a): the member shall cease to be a member. A person seeking review therefore has a strong practical reason to move at once, and to consider whether interim relief should be sought from the Supreme Court.
References under Division 2
Part XVIII Division 2 provides a separate route. Under section 228, a question respecting the qualifications of a member or respecting a vacancy in the Parliament may be referred by resolution to the National Court by the Parliament, and the Court then has jurisdiction to hear and determine it.
On such a reference, the Court shall sit as an open court and has the powers conferred by Section 212 so far as they are applicable, and in addition may declare that a person was not qualified to be a member, declare that a person was not capable of being chosen or of sitting as a member, and declare that there is a vacancy in the Parliament — section 231.
Section 233 applies sections 217 to 222 to such references so far as applicable — so section 220 applies there too, and a determination on a reference is likewise final and conclusive.
Sources
- Organic Law on National and Local-level Government Elections — ss 212, 220, 221, 226, 228–233
- Constitution — s 155(2), (4)
- Supreme Court Rules 2012
- Election Petition Rules 2017 — rr 19, 22
- Supreme Court Act (Chapter 37)
The PacLII page for the Supreme Court Act (Chapter 37) is a landing page; the consolidated text is not reproduced there in HTML.
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.