What Is Section 155(4), and Why Do Lawyers Cite It Constantly?

If you read Papua New Guinean judgments for any length of time, you will meet section 155(4) of the Constitution constantly. It is short, and it is the most frequently invoked source of remedial power in the country.

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.

Two powers in one sentence

Orders in the nature of prerogative writs. The familiar public-law remedies — certiorari (quashing a decision), mandamus (compelling performance of a duty), prohibition (restraining excess of power), and orders in the nature of habeas corpus and quo warranto. In Papua New Guinea these do not depend on the old English procedures; the power is conferred directly by the Constitution.
“Such other orders as are necessary to do justice in the circumstances of a particular case.” A general remedial power, not tied to any named form of order.

The limit: section 155(4) does not create rights

The recurring point in the case law

Section 155(4) is remedial, not substantive. It gives the courts power to fashion an order to protect or enforce a right that exists elsewhere. It does not itself confer a “primary right”, and it cannot be used to get around a statute or to give a party something the law does not otherwise allow.

This is the distinction courts draw between primary rights (which come from the Constitution, a statute, the underlying law or a contract) and the remedial power in section 155(4). A pleading whose only foundation is section 155(4) is vulnerable. A pleading that identifies the right and then asks for a section 155(4) order to protect it is on solid ground.

The point has been worked through in cases including Application by John Mua Nilkare [1997] PGSC 20; [1998] PNGLR 472, Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317, and SCR No 2 of 1981 [1982] PGSC 18; [1982] PNGLR 150.

What section 155(4) is actually used for

Judicial review of administrative decisions — quashing, compelling, restraining.
Interim protection — restraining orders and stays to preserve the position until a case is decided.
Filling procedural gaps where the Rules of Court do not provide a form of order that fits.
Enforcement — ensuring that a decision of the National Judicial System is given effect, alongside the section 155(6) duty on all persons, bodies and institutions to comply with and put into effect all decisions of the System.
Review of tribunal decisions, including leadership tribunals, where no appeal lies.

Section 155(4) works alongside several other provisions, and choosing the right one matters:

Remedial powers compared
Provision	What it gives
s 155(2)(b)	Supreme Court’s inherent power to review all judicial acts of the National Court — the route where an appeal right has been lost.
s 155(3)(a)	National Court’s inherent power to review any exercise of judicial authority.
s 155(5)	National Court’s power of review even where review has been removed or restricted by law, where there are over-riding considerations of public policy in the special circumstances of the case.
s 22	National Court supplies missing machinery or procedure for constitutional rights and duties.
s 23	Sanctions for breach of a Constitutional Law where no other enforcement is provided.
s 57(3)	All orders and declarations necessary or appropriate to protect or enforce a Basic Right — and section 57(6) says this is in addition to, not in derogation of, other powers.

Using section 155(4) properly

Name the primary right — the constitutional provision, statute, rule of the underlying law or contractual term.
Show the interference with or threat to that right.
Identify the order sought, and why nothing else will do justice in this particular case.
Explain why it is proper in the circumstances — the section says “in such circumstances as seem to them proper”.
Do not use it as a substitute for an appeal that is available, or to sidestep a statutory scheme.

Sources

Check the section yourself

Constitutional sections are amended. Before relying on anything here, read the current text: the Constitution on PacLII. If a decision matters to you, get advice — start with the Office of the Public Solicitor.