Sections 160 to 162 of the Constitution establish the Supreme Court and set out what it does.
Section 160 — a superior court of record
A Supreme Court of Justice is established. It is a superior court of record and, subject to any Act, has the power to punish the offence against itself commonly known as contempt of court. Contempt is also the single offence that section 37(2) exempts from the requirement that offences be defined by written law.
Section 161 — who sits
- The Supreme Court consists of the Chief Justice, the Deputy Chief Justice and the other Judges of the National Court — excluding acting Judges.
- Subject to section 162(2), for the purposes of any hearing the Court shall consist of at least three Judges.
- In a hearing of at least three Judges, the Chief Justice, the Deputy Chief Justice or the most senior Judge available presides.
Papua New Guinea does not have a separate bench of Supreme Court judges. The Judges of the National Court sit as the Supreme Court, normally in benches of three or five. What distinguishes the courts is the jurisdiction being exercised and the number sitting, not the personnel.
Section 162(2) allows the jurisdiction to be exercised by a single Judge, or by a number of Judges sitting together, in cases provided for by Act or by the Rules of Court — typically procedural and interlocutory matters. Section 162(3) allows different Judges to exercise the jurisdiction at the same time, and section 162(4) allows it to be exercised in court or in chambers.
Section 162 — jurisdiction
The Court’s jurisdiction is as set out in:
- Subdivision II.2.C — constitutional interpretation: sections 18 and 19;
- Subdivision III.3.D — enforcement of Basic Rights: sections 57 and 58;
- Section 155 — the National Judicial System,
and otherwise as provided by the Constitution or any other law — principally the Supreme Court Act (Chapter 37).
Section 155(2) — the three heads
(a) is the final court of appeal;
(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 by the Constitution or any other law.
Paragraph (b) matters where a right of appeal has been lost or is unavailable. A review under section 155(2)(b) is not an appeal, and is not subject to the same time limits — but leave is required and it is not granted as of course. It has been the route in cases such as Application by John Mua Nilkare [1997] PGSC 20; [1998] PNGLR 472 and Aihi v The State (No 1) [1981] PGSC 9; [1981] PNGLR 81.
The exclusive constitutional jurisdiction
Under section 18(1), the Supreme Court has original jurisdiction, to the exclusion of other courts, over any question relating to the interpretation or application of a provision of a Constitutional Law. Other courts and tribunals must refer such questions to it unless they are trivial, vexatious or irrelevant.
Under section 19, nine categories of authority may put a constitutional question to the Court without any live dispute — including a question as to the validity of a law or a proposed law — and the opinion given has the same binding effect as any other decision of the Court.
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. See section 155(4) explained.
How a case reaches the Supreme Court
- Appeal from the National Court, under the Supreme Court Act and the Rules of Court.
- Review of a judicial act of the National Court under section 155(2)(b), with leave.
- Constitutional application under section 18(1), or a referral from a court or tribunal under section 18(2).
- Special reference under section 19, by one of the listed authorities.
- Enforcement of Basic Rights under section 57.
- Bail — an application in a summary manner after refusal, under section 42(7)(b).
Time limits for appealing run from the date of the decision, not from when you learned of it, and they are strictly applied. If you are considering an appeal, get advice the same week — the Office of the Public Solicitor is the starting point if cost is an obstacle.
Sources
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.