N2746

PAPUA NEW GUINEA

[Leadership Tribunal]

IN THE MATTER OF - THE REFERENCE BY THE PUBLIC PROSECUTOR

AND

IN THE MATTER OF - THE HON. PETER YAMA, M.P, MEMBER FOR SUMKAR OPEN AND NOW MEMBER FOR USINO/BUNDI OPEN

Waigani:
HON JUSTICE HINCHLIFFE – Chairman
MR FRANK MANUE – Senior Magistrate - Member
MR PATRICK MONOLUK – Senior Magistrate - Member
2004: 12th November, 1st December

REASONS FOR RECOMMENDATION ON PENALTY

HINCHLIFFE J.: On the 10th November, 2004, the tribunal found the Leader Hon. Peter Yama guilty on three (3) counts of misconduct in office, which are allegations 3, 10 & 16 and not guilty on thirty-one (31) counts which are allegations, 1 & 2, 4 – 9, 11 – 15 and 17 – 34. Having found the leader guilty, the tribunal is required by law to make its recommendations on penalty to the appropriate authority. The counts which the leader was charged with are restated in these terms: -

ALLEGATION 3: 	THAT in 1993 the Leader failed to carry out the obligations imposed by s. 27 (1) of the Constitution;

BY conducting himself in his public life and in his associations with other persons in such a way that he: -

(a)	Placed himself in a position in which he had a conflict of interest; and

(b)	Demeaned his office as the member for Sumkar Open; and

(c)	Allowed his official integrity and his personal integrity to be called into question; and

(d)	Endangered and diminished respect for and confidence in the integrity of government in Papua New Guinea.

AND FURTHERMORE the Leader failed to carry out the obligations imposed by s. 27 (2) of the Constitution:

BY using his office for personal gain and entering into transactions that might be expected to give rise to doubt in the public mind as to whether he was carrying out the duty imposed by s. 27 (1) of the Constitution;

IN THAT having been allocated K195,000.00 of public money by the National Government under Vote No 259-3601-5-202-144 for specific projects approved for funding under the Rural Transport Development Program fund, he –

(i)	failed to ensure that public money was properly applied to the transport infrastructure projects for which it had been allocated; and 

(ii)	converted a substantial part of that public money to his personal use and the use of his associates; and

(iii)	failed to properly acquit that the public money;

THEREBY being guilty of misconduct in office under Section 27(5) (b) of the Constitution.

ALLEGATION 10: 	THAT in May, 1993, the Leader failed to carry out the obligations imposed by Section 27(1) of the Constitution;

BY conducting himself in his public life and in his associations with other persons in such a way that he: -

(a)	placed himself in a position in which he had a conflict of interests; and

(b)	demeaned his office as the member for Sumkar Open; and

(c)	allowed his official integrity and his personal integrity to be called into question; and 

(d)	endangered and diminished respect for and confidence in the integrity of government in Papua New Guinea;

AND FURTHERMORE the Leader failed to carry out the obligations imposed by s. 27 (2) of the Constitution;

BY entering into transactions that might be expected to give rise to doubt in the public mind as to whether he was carrying out the duty imposed by s. 27 (1) of the Constitution;

IN THAT having been allowed K20,000.00 of public money by the National Government under Vote No 225-1709-1-101-144 for law and order projects in his electorate, he –

(i)	failed to ensure that that public money was properly applied to the law and order projects for which it had been allocated; and 

(ii)	converted a substantial part of that public money to his personal use and the use of his associates; and

(iii)	failed to properly acquit that public money;

THEREBY being guilty of misconduct in office under s. 27 (5) (b) of the Constitution.

ALLEGATION 16: 	THAT in 1995, the Leader failed to carry out the obligations imposed by Section 27 (1) of the Constitution;

By conducting himself in his public life and in his associations with other persons in such a way that he:

(a)	placed himself in a position in which he had a conflict of interests; and 

(b)	demeaned his office as the member for Sumkar Open and Minister for Transport and Works; and

(c)	allowed his official integrity and his personal integrity to be called into question; and

(d)	endangered and diminished respect for and confidence in the integrity of government in Papua New Guinea

AND FURTHERMORE the Leader failed to carry out the obligations imposed by Section 27(2) of the Constitution;

BY using his office for personal gain and entering into transactions that might be expected to give rise to doubt in the public mind as to whether he was carrying out the duty imposed by Section 27(1) of the Constitution; 

IN THAT having been politically responsible for K21.8 million of public money intended for allocation among the 109 members of the National Parliament under Vote No 259-3601-5-202 for those members to in turn apply to specific transport projects in each of their electorates approved for funding under the Rural Transport Development Program, he –

(i)	distributed that public money contrary to the principles of fair and equitable distribution required by the National Goals and Directive Principles; and

(ii)	failed to allocate any funds under the Rural Transport Program to a considerable number of electorates; and

(iii)	allocated the grossly disproportionate amount of K1,557,640.00 of that public money to projects in his own electorate; and

(iv)	having allocated a grossly disproportionate amount of funds to projects in his electorate, failed to apply those funds to his nominated projects and applied those funds to other unauthorised purposes; and 

(v)	converted a substantial part of the funds intended for his electorate, being public money, to his personal use and the use of his associates; and

(vi)	failed to provide to the administering authority, the Department of Transport, a full and prompt acquittal of how the funds were disbursed, despite being the Minister with political responsibility for the Rural Transport Development Program.

THEREBY being guilty of misconduct in office under s. 27 (5)(b) of the Constitution..

Counsel made mitigating submissions on penalty on the 11th November, 2004, and the matter was subsequently adjourned to today for decision.

Section 27 (5) Organic Law on Duties and Responsibilities of Leadership penalty provision is in these terms: -

If the tribunal finds that a person to whom the Law applies is guilty of misconduct in office, it shall recommend to the appropriate authority that –

(a)	he be dismissed from office or position; or

(b)	as permitted by Section 28 (1A) (further provisions relating to the Leadership Code) of the Constitution and in the circumstances set out in that subsection – some other penalty provided for by and Act of the Parliament be imposed

Section 28 (1)(g) (ii) and 1A) Constitution provides: -

28.	Further Provisions

"(1)	For the purposes of this Division, an Organic Law –

(g)	shall establish independent tribunals that –

(ii)	are required subject to Subsection (1A) to recommend to the appropriate authority that a person found guilty of misconduct in office be dismissed from office or position; and " …….

And Subsections (1A) is in these terms: -

28 (1A) Constitution

"(1A) An Organic Law may provide that where the independent tribunal referred to in Subsection (1) (g) finds that –

(a)	there was no serious culpability on the part of a person found guilty of misconduct in office; and

(b)	public policy and the public good do not require dismissal,

it may recommend to the appropriate authority that some other penalty provided for by law be imposed".

Section 27 (5) Organic Law requires a tribunal to dismiss a leader from office or his position unless the tribunal finds that there is no serious culpability on the part of the leader and public policy coupled with public good do not require dismissal of the leader. In which case the tribunal may recommend an alternative penalty, which is a penalty other than dismissal from office.

Section 2 of the Leadership Code (Alternative Penalties Act) 1976 provides for the alternative penalties as: -

2.	Alternative Penalties

The penalties that may be recommended and imposed under and for the purpose of Section 28 (1A) of the Constitution and Section 27 (5) (b) of the Organic Law are that the person found guilty of misconduct in office –

(a)	be fined an amount fixed by the tribunal, not exceeding K1,000.00 or

(b)	be ordered by the appropriate authority to enter into his own recognizance in a reasonable amount, not exceeding K500.00 fixed by the tribunal that he will comply with Division 111.2 (Leadership Code) of the Constitution and with the Organic Law during a period fixed by the tribunal, not exceeding 12 months from the date of the announcement, under Section 27 (6) of the Organic Law, of the decision of the tribunal; or

(c)	be suspended, without pay, from office or position for a period not exceeding three months from the date of commencement of the suspension; or

(d)	be reprimanded,

or if he is a public office-holder as that expression is defined in Section Sch. 1.2 (1) of the Constitution, that, as determined by the tribunal –

(e)	he be reduced in salary; or

(f)	if his conditions of employment are such as to allow for demotion – he be demoted.

This provision provides for alternative penalties which sets the next penalty below dismissal as a fine of an amount not exceeding K1,000.00 on each count the leader is found guilty and a range of other penalties down to reprimand.

At this stage I should mention again the said Alternative Penalties. At Section 2 (b) it provides, inter alia, as follows: "that he will comply with Division 111.2 (leadership Code) of the Constitution and with the Organic Law ……". To my surprise when I went to the Constitution in search of Division 111.2, I found that there was no such Division. That is, it did not exist. I was even more surprised when I discovered that this non-existent Division 111.2 is mentioned in other sections of the Constitution. Again, after much searching I found "Part III – Basic Principles of Government". Division 2 of the said Part III is headed "Division 2 – Leadership Code".

I suspect that this Part III Division 2 is the one and the same as the said Division III.2. If that is the case then the correct reference is "Part III Division 2 – Leadership Code".

This serious error in the Constitution, the Organic Law on the Duties and Responsibilities of Leadership and the Leadership Code (Alternative Penalties) Act, 1976 needs to be corrected as soon as possible. It is quite amazing that the Leadership Code (Alternative Penalties) Act 1976 has been in force for twenty-eight (28) years and this, it would appear, is the first time that the glaring and obvious error in the said legislation has been questioned. I urge the appropriate authorities to do something or do they expect future Leadership Tribunals to keep on querying as to the whereabouts of various Sections, Parts and Divisions of the said Legislation.
Finally, in relation to the said Alternative penalties and more particularly to the said Sect. 2 (6) of the said Leadership code Act that it be amended to be far more specific and helpful when reading it, rather than simply saying that the Leader is to "comply with the Organic Law". That is just so broad and general that it almost means nothing. It is most frustrating to read such wording in an important Act and I recommend, again, that something be done about it as soon as possible.

I believe I speak with broad support that the K1,000.00 fine, mentioned as an alternative penalty to dismissal from office is, in this day and age, totally inadequate. As I am led to believe the K1,000.00 fine dates back to 1976, twenty eight (28) years ago. Even though I do not have the figures before me, I think I can say, fairly safely, that K1,000.00 in 1976 was worth a great deal more that it is today. At this time, unfortunately the kina has lost much of its value and it follows that it has lost much of its buying power. By not increasing the K1,000.00 fine it has left the Leadership Tribunals in quite a frustrating and restricted situation. On the one hand you have the maximum penalty of dismissal from office and on the other hand the next penalty down, open to the tribunal is a K1,000.00 fine. I would have thought that, if the penalty is to be a true alternative penalty in its real meaning then fines should be increased from a minimum fine of K10,000.00 up to a maximum fine of K80,000.00. That, at least, would give a Leadership Tribunal something solid and real to work on. At the moment, the maximum K1,000.00 fine is almost laughable.

There appears to be no dispute that alternative penalties may be recommended where the Leadership Tribunal finds that there was no serious culpability on the part of the person found guilty of misconduct in office and public policy and the public good do not require dismissal, (see Section 28 (1A) of the Constitution and Section 27 (5) of the Organic Law on Duties and Responsibilities of Leadership).

Or in other words the said Sections of the Constitution and the said Organic Law requires a tribunal to dismiss a leader from office or his position unless the tribunal finds that there is no serious culpability on the part of the leader and public policy coupled with public good do not require dismissal of the leader, in which case the tribunal may recommend an alternative penalty, which is a penalty other than dismissal from office.

What does "serious culpability" mean?

What do "public policy and the public good" require?

I am gratefully assisted here by Mr Kaluwin’s written submissions at pp. 4 to 6. I propose to include them in this judgment because they explain this area fairly well. It is not an easy area as can be seen in Mr Kaluwin’s submissions.

They read as follows:

"4.	WHAT DOES "SERIOUS CULPABILITY" MEAN?

"Culpability" is defined by the Oxford English dictionary to mean "deserving blame". In the Nilkare case, the tribunal stated, at page 3 of its decision on penalty"

It involves serious blame, an act involving wrongful intention or negligence, an act deserving censure.

Recently in the leadership tribunal’s decision on penalty in the Nali (No.1) case, the tribunal examined, at pages 14-15, the interpretation and application of "serious culpability". The tribunal emphasised that it needed to look at the degree of blameworthiness on the part of the leader. It needed to look at his misconduct in the context of the overall circumstances of the case. The tribunal concluded that though the matters Mr Nali has been found guilty of were not trivial – "they are serious matters" – there was, nevertheless, no serious culpability or blameworthiness.

5	WHAT DO ‘"PUBLIC POLICY AND THE PUBLIC GOOD" REQUIRE? A STUDY OF SOME OF THE MORE RECENT TRIBUNAL DECISIONS ON PENALTIES.

A most helpful starting point has always been to have regard to the final report of the Constitutional Planning Committee (CPC). The following passage was taken into account by the tribunal in the Dusava case and cited with approval when the Supreme Court reviewed the tribunal’s decision on penalty in that case.

The CPC stated:

We have included in our proposals a code which people will be expected to observe and which will be enforceable by the Ombudsman Commission and an appropriate judicial tribunal. It is hoped thereby to avoid the kind of corruption too often seen abroad, that stems from the failure to put the public and the national interest above personal advantage.

The deterrent effect of the tribunal’s decision on penalty must also be taken into account when determining what "public policy and the public good" require.

In Supreme Court Reference No 2 of 1992 it was held that the entire trust and primary purpose of the Leadership Code is "to preserve the people of Papua New Guinea from misconduct by its leaders" [1992] PNGLR 336, per Kidu CJ, Amet, Los and Andrew JJ at pages 341-342).

That principle was recently adopted by the tribunal in Hagoria’s case.

A supplementary purpose of the Leadership Code is, as stated by the Supreme Court in Re Joseph Auna [1980] PNGLR 500, directed towards "removing a person who is considered, after due inquiry, to be unworthy of continuing in office".

The conduct is not restricted to corrupt conduct. In the Application by Gabriel Dusava, SC 581, 27 October, 1998, the majority considered the purposive approach of the Leadership Code and the fact that there is no restriction to corrupt conduct only. It is sufficient to warrant the ultimate penalty of dismissal from office where any type of conduct amounts to misconduct in office.

In the Singirok case, unreported decision of the leadership tribunal – recommendations on penalty handed down on 20th and 21st March, 2000, reference was also made to the views and aspirations of the CPC which were endorsed as early as three years after the Constitution came into effect and that was in Supreme Court Reference No. 1 of 1978 In re Leo Morgan [1978] PNGLR 460, at 464:

….we consider that the Constitution, in so far as it seeks to preserve the People of Papua New Guinea from misconduct by its leaders should be considered as a penal statute. In requiring a higher standard of behaviour from its leaders from ordinary citizens, it should not be considered as "penalizing" or "punishing" a leader, but as ensuring in the interest of the safety of the People that only persons who are prepared to accept added restrictions on their personal behaviour should become leaders.

While the Singirok case did not deal with a Member of Parliament it still found much assistance from what the tribunal stated in the Diro case. Of course in the present case we are dealing with a Member of Parliament.

Members of the National Parliament not only represent their electorate; they represent their country in that foreigners observe their conduct and thereby from a view of this country. A Member of Parliament who engages in sub-standard conduct gives this country a sub-standard reputation.

In the Kas case the tribunal was of the view that it was necessary to ask; is this the type of conduct that the People of Papua New Guinea deserve from their leaders? It went on to consider that public perception and public impression of the leader is also relevant. In the decision on penalty handed down on 27th September, 2000, it found support from the statement of Kapi DCJ in Application of John Mua Nilkare, SC536, a decision of the Supreme Court on 15th April, 1997, where His Honour observed at page 27:

The other type of conduct s. 27 (1) (b) and (d) are expressed in very wide and general terms. It is incapable of precise definition. In fact, any kind of definition is likely to fall short of what this provision was intended to cover. These provisions cast a very wide net to catch all kinds of conduct by leaders. One thing is clear, it is the public perception of the leader:

What then are the proper standards of conduct? I have no doubt that the laws of this country in themselves set a standard of conduct. Where a leader breaches or ignores any law of Papua New Guinea, he is likely to breach s. 27 (1) (b) to (d) of the Constitution.

The tribunal in the Kas case agreed that the combined effect of the relevant provisions is:

That a leader who is convicted of misconduct in office must be dismissed from office unless the Tribunal is satisfied that, firstly, there is no serious culpability on his part, and secondly, public policy and good dictate that he should not be dismissed. (page 16)

The tribunal in the Kas case also emphasised that the purpose of the leadership Code is to protect the People, not only from corrupt conduct, but also from improper conduct. The tribunal referred to Re Joseph Auna [1980] PNGLR 500, where the Supreme Court in discussing the Leadership Code said at 504:

The purpose is to prevent continuance in office of unworthy people …

These considerations are an indication to the tribunal that it must consider the purpose of the Leadership Code and proceedings for its enforcement.

In the Nali (No 1) case the tribunal chaired by Gavara-Nanu J, gave a detailed exposition, at pages 17 – 23, of the interpretation and application of "public policy and the public good".

In April, 2004, in the Nali (No 2) case the tribunal chaired by Batari J, considered all circumstances and concluded that there was serious culpability on Mr Nali’s part and that the public policy and public good require his dismissal as the member for Mendi in the National Parliament, applying the totality principle".

Even though at the commencement of these proceedings there were thirty-four (34) allegations against the leader, by the end of this hearing there were only three (3) allegations proved. These three (3) allegations are now before the Tribunal for penalty. Mr Lomai, for the leader has urged the tribunal not to recommend dismissal from office but to either reprimand his client or to fine him K1,000.00 on each allegation. On the other hand Mr Kaluwin, for the State, has submitted very strongly that the actions of the leader warrants a recommendation from the tribunal that Hon. Peter Yama, MP be dismissed immediately.

At the beginning of this decision I set out in full, allegations 3, 10 and 16. There is no doubt in my mind that those allegations were very serious and they indicated and alleged serious culpability on the part of the leader. In fact they painted a very poor picture of the leader and to my mind if all or most of the contents of each of those allegations had been proved then I am of the view that it would almost have been automatic that the leader would have been recommended for dismissal from office.

I say that because in each allegation the leader was accused of converting a substantial part of that public money to his personal use and the use of his associates. Effectively he was being accused of stealing large amounts of money. That of course is a criminal offence. But that is not the way things worked out. In fact the following indicates what was left over at the conclusion of the hearing.. It certainly is an extremely different state of affairs to what was set out in the beginning when the leader faced thirty four (34) serious allegations, many of a criminal nature, in nine (9) categories.

CATEGORY 2 – RURAL TRANSPORT DEVELOPMENT PROGRAM FUNDS – 1993

Allegation 3

Having received K195,000.00 of public funds under Vote No 259-3601-5-202—144 for specific projects approved for funding under the Rural Transport Development Program fund Mr Yama failed to properly acquit that public money thereby failing to carry out his obligations as a leader under Sections 27 (1) and 27 (2) and being guilty of misconduct in office under Section 27 (5) (b) of the Constitution.

CATEGORY 3 – LAW AND ORDER FUNDS – 1993

Allegation 10

Having received K20,000.00 of public funds under Vote No 225-1709-1-101-144 for law and order projects in his electorate Mr Yama failed to acquit these funds thereby failing to carry out his obligations as a leader under Sections 27 (1) and 27 (2) and being guilty of misconduct in office under Section 27 (5) (b) of the Constitution.

CATEGORY 5 – RURAL TRANSPORT DEVELOPMENT PROGRAM FUNDS – 1995

Allegation 16

Having been politically responsible for K21.8 million of public funds intended for specific transport development projects in each electorate in Papua New Guinea, Mr Yama

(a)	distributed that money contrary to the principles of fair and equitable distribution required by the National Goals and Directive Principles;

(b)	failed to allocate some of that money to a number of electorates;

(c)	allocated a grossly disproportionate amount in the sum of K1,557,640.00 of that public fund to a project in his own electorate;

(d)	having allocated a grossly disproportionate amount in the sum of K1,557,640.00 of that public fund to a project tin his own electorate, failed to apply these funds to his nominated projects and applied these funds to other unauthorised purposes; and

(e)	failed to provide a full and prompt acquittal of these funds.

and thereby failing to carry out his obligations as a leader under Sections 27 (1) and 27 (2) and being guilty of misconduct in office under Section 27 (5) (b) of the Constitution.

I will deal with allegation Nos 3 and 10 together because at the end of the day the only thing the State was able to prove against the leader was the fact that he failed to acquit.

That is all and it should not be taken that if the leader has failed to acquit monies then he must have been guilty of unlawfully using those monies for the use of himself and his associates. I am aware that that has been the attitude of some Leadership Tribunals, but I do not agree. It must not be forgotten that our Leadership Tribunal hearings are conducted in a fairly similar way to criminal proceedings. The State is not assisting here, it is prosecuting various allegations and being put to its proof which is somewhere just below the criminal standard. We are not sitting on a friendly investigation here it is more like a hotly fought criminal trial. May be that was not the intention of Leadership Tribunal hearings, but like it or not that is the way they have developed.

Mr Lomai, in his written submissions, has placed considerable reliance on the case of Application by John Nilkare [1998] PNGLR 472 and on p 538 where the Supreme Court stated as follows:

The Tribunal was bound to recommend dismissal because it had determined that there was serious culpability on the part of a leader. We consider however, that after the decision of this court the culpability of the leader has been considerably lessened. It has been lessened in respect of range, number and extent so that serious culpability no longer exists. Further we have determined in the majority of the determinations relating to charges laid under Section 27 of the Constitution that, although the leader was guilty of failing to comply with proper procedures, large sums of money were in fact applied for public benefit.

In this case, Honourable Nilkare was charged with thirty-one (31) counts of misconduct in office. Most of the charges relates to the use of public funds. The Tribunal found the leader guilty on twenty-five (25) allegations. He appealed and the Supreme Court quashed eighteen (18) allegations out of twenty-five (25). Seven (7) of the allegations were confirmed by the Supreme Court out of which the Supreme Court imposed a fine of K1,000.00 on each of the allegations.

In fact that is similar to what was left of the thirty-four allegations in this matter and I am quite satisfied that the serious culpability had substantially dwindled to a situation where it almost no longer existed. What is important to note here is that the Tribunal dismissed any suggestion of the leader unlawfully converting any of the money to his own use or to that of his associates. That to my mind is extremely important, to note because so often we do hear in Leadership Tribunals, that the leader did in fact unlawfully convert the money to his own use or to that of his associates. As I have already said it is tantamount to stealing. Not so here. It was a failure to acquit, even though still serious, that is all. The great drama of the thirty-four (34) allegations and all the criminal considerations and allegations that went with them have substantially gone. The serious culpability has dwindled considerably.

Allegation 16 is somewhat different, and that is why I am dealing with it separately. I say it is somewhat different because, as has been seen some five (5) of the six (6) (ie (i), (ii), (iii), (iv) and (vi) allegations making up allegation sixteen (16) were proved, not forgetting of course that allegations seventeen (17), eighteen (18) and nineteen (19) which made up Category 5 together with allegation sixteen (16) were dismissed. The very important number (v) of allegation sixteen (16) was not proved and to my mind that is most important when looking at this point as a whole. I shall spell it again. It alleged that the leader "converted a substantial part of the funds intended for his electorate, being public money, to his personal use and the use of his associates".

That was not proved and in fact it was dismissed. Allegation sixteen (16) related to the unequal distribution of funds. The said (v) to a great extent seems to contradict itself because if would seem that it is suggesting that the leader was "helping himself" to the money, but I am of the view that he was in fact over favouring, if anything, his own electorate. To accuse him of converting his electorate’s money to his own use seems to me to be contradictory.

Anyway, that allegation and suggestion was dismissed by the tribunal. I suspect that the leader, in his fairly early days in Parliament, was too enthusiastic about helping his own electorate and to some extent was doing too much for his people in that some other electorates may have missed out. But as far as that is concerned I am not exactly sure. There is no doubt though, that the leader should have been far more careful in his enthusiasm, to help his own people. I know that remark must sound strange because most of the time politicians are criticised for not helping their people nearly enough. On this occasion we have a leader who has helped his people too much, and not followed the rules, and now is facing a penalty from a Leadership Tribunal. 

That penalty of course is justified because it seems that, others who should have benefited have missed out.

Mr Lomai again relies on Nilkare’s case regarding Allegation 16 and submits that a reprimand or K1,000.00 fine should be appropriate.

I am of the view that Nilkare’s case is most important for this tribunal to consider. I am satisfied that the serious culpability on the part of the leader has diminished considerably after the horrific thirty-four (34) allegations were reduced after a hearing, to a mere three (3). That is thirty-one (31) of the thirty-four (34) allegations were dismissed. There was not a great deal left. Especially so when some of the allegations within allegations three (3), ten (10) and sixteen (16) were also dismissed. I am also satisfied that there is no proof whatsoever before the tribunal that the leader unlawfully converted any money to his own use or to that of his associates and that also goes to the dismissal of serious culpability. The degree of serious culpability is almost nil.

After previously setting out the law and some findings of past Leadership Tribunals regarding public policy and the public good I am further satisfied that dismissal is not required here. I think that the public here would see the Leader’s actions as not good business in failing to acquit but also would appreciate that he was reasonably new to the job and to the public sector and did not appreciate the possible serious consequences of failing to acquit. They would expect him to follow the rules properly in the future. The public would also be relieved in that their leader was not found to be unlawfully getting money for his own use and to that of his associates and some may argue that he is a poor manager when it comes to some of the tedious requirements of the bureaucracy.

Also much the same could be said for Allegation 16 which also found, I might add, that amongst other things, the leader failed to acquit. Again I say he did not unlawfully convert any money for himself or for his associates and that to my mind would be the main concern of the public. Any finding of unlawfully converting money to his own use would, I believe, convince the public that dismissal from office would be the appropriate course and any Alternative penalty would be inappropriate. The public in this case also would know the leader very well and be aware of the extensive community work be has done and the enormous concern and effort he has put in to improve the living conditions and qualities of his people. It is common knowledge that Mr Yama is well respected by his people and many other people in the country and under the circumstances of his case I do not believe that public policy or the public good would require his dismissal.

Alternative Penalty

I have already commented on the alternative penalty which would be a fine. The maximum amount is K1,000.00 for each proved allegation therefore I recommend that the leader be fined K1,000.00 on each allegation which is a total of K3,000.00. Again I say that the maximum figure is embarrassingly low but at the moment, until amendment, that is all the tribunal can impose. 

As I said earlier fines of K10,000.00 to K80,000.00 would be closer to the mark. The said Leadership Code (Alternative Penalties) Act, 1976 does not seem to provide for any action the tribunal can take in default of payment of the fine so I remain silent on that.

MANUE F: The Chairman has re-stated the three (3) allegations the leader was found guilty of and the enabling legislations relating to penalty so I need not repeat them.

Honourable Peter Yama has been found guilty on three counts of the 34 allegations on the 10th November 2004. The Tribunal heard counsels' submissions on the 12th November 2004 and had the decision on penalty adjourned to today.

I shall commence my decision with the submissions and proceed on to the conclusion.

SUBMISSIONS:

Submission by the Defence:

In essence, counsel for the leader submitted that the Tribunal should consider the alternative penalties of either a fine of an amount not exceeding K1,000.00 for each of the three (3) counts or a reprimand on them. 

He submitted that the culpability aspect by the leader had been lessened under the three separate categories of allegations, the leader has been charged and found guilty.

He submitted that, under category 2, Allegation 3, allegation four (4) to nine (9) have been dismissed. Only one count relating to non-acquittal of Rural Transport Development Program Fund – 1993, was proven and the leader found guilty.

Likewise under category 3 allegation, the leader was found guilty on allegation 10 only while the other two (2) allegations were dismissed. Allegation 10 relates to non-acquittal of Law and Order Fund, 1993.

He submitted that under category 5 allegation, only allegation 16 was proven while the other three (3) counts were dismissed. Allegation 16 relates to non-acquittal of Rural Development program Fund of 1995.

Allegation 16 relates to the leader disproportionately distributed K21.8 million of public funds under the Rural Transport Development Fund of 1995 which was contrary to the required National Goals and Directive Principles and in doing so six open electorates were not allocated any funds. Subsequently, the K1,557,640 appropriated to his own electorate was not acquitted.

Mr. Lomai submitted that, under each of the category alluded, most of the allegations, have been dismissed against the leader and therefore has lessened the culpability issue. In relation to allegation 16, he submitted that the leader was not reckless in spending his allocated K1,557,640.00, unlike the Honourable Bernard Hagoria where the tribunal found him to have been careless and reckless in his spending of public funds. He cited various cases, including the Supreme Court case of John Nilkare [1998] PNGLR 472, which enunciated the culpability issue. 

Mr. Lomai also submitted that the Tribunal should consider the leader’s background and achievements prior to and after becoming a leader, when arriving at an appropriate penalty.

Mr. Lomai did not address the Tribunal on the issue of public good and policy.

Submission by the prosecution.

Mr. Kaluwin submitted that the maximum penalty of dismissal of the leader from office or position should be recommended by the Tribunal.

He submitted that there was serious culpability on the part of the leader and that public good and policy require that leaders who are guilty of misconduct in office, demand to be censured so that the people of Papua New Guinea are preserved from misconduct by its leaders, even if it means, recommending for dismissal only on one count of misconduct in office, as seen in Kas’s Tribunal. 

He submitted that the Tribunal should apply the totality concept as in the Supreme Court decision in Peter Peipul’s case to arrive at its recommendation. Various cases were cited in view of his submission.

REASONS FOR DECISION:

We are now confronted with the task of dismissing the leader conditional to the two requirements provided under Section 28(1A) of Constitution, being made out.

Was there serious culpability on the part of the leader for the three (3) allegations he has been found guilty and do public good and public policy require his dismissal from office?

There is no dispute that the leader was culpable but that the degree of such must be serious to warrant his dismissal as required by Section 28(1A) of the Constitution.

In deciding this issue, it is necessary to appreciate the definition of serious culpability. In the John Nilkare Tribunal, it described ‘serious culpability’ in this way: -

"It involves serious blame, an act involving wrongful intention or negligence, an act deserving censure".

The Michael Nail (No1) Tribunal found some assistance in defining "serious culpability" from the Case of The State -v- Morobet Awui Koma and Peter Kevin [1987] PNGLR 262 where Wilson J at p.263 said: -

"The essential starting point is to fix the culpability or blameworthiness of the prisoner" 

These cases refer to the degree of culpability or blameworthiness of the offender. I adopt these principles to determine the degree of culpability or blameworthiness on the part of the leader for the matters he has been found guilty of.

Mr. Lomai submitted that the principle of culpability was referred to and set by the Supreme Court in John Nilkare’s case, where it quashed 17 of the 24 allegations of misconduct in office on review of the Tribunals findings. It followed therefore that the "total gravity of culpability of misconduct must necessarily be reduced significantly", and had the dismissal recommendations reduced to a total fine of K7,000.00.

Whilst I appreciate that I am bound by the Higher Court’s decision, the facts of that case are quite significantly different to this case.

Significantly in that case, the leader not only exercised his right to give evidence but that evidence established that the funds were applied for public benefit.

In the Nilkare case the tribunal found that the Honourable Nilkare did not comply strictly to the guidelines when he applied the public funds on the various other projects which were not intended initially by the various public funds policies.

The Supreme Court in ruling on those findings of the tribunal said at p. 108 as follows:

"…though the leader was guilty of failing to comply with proper procedures, large sums of money were in fact applied for public benefit." 

It is clear from this passage that the court overruled the issue of adhering strictly to the guidelines when applying public funds and gave paramount consideration to the application of the funds for the benefit of the public. In this case it is clear from the evidence that public funds were indeed applied for the benefit of the public.

In my view this was the dominant or underlying reason why the Nilkare Tribunal’s decision for a dismissal on the 24 counts were reduced to only seven and consequently fined in total, K7,000.00.

Contrary to the Nilkare case, the leader remained silent after pleading not guilty to all 34 allegations. Except for the Law and Order Funds 1993, there is no evidence on how and where the money was expended on. Although, the onus was on the prosecution to prove to the contrary, the leader has a moral obligation to his people and the country as a whole to be accountable and transparent. It is my view that the only way to stand out and be counted with that type of integrity and reputation as a leader is to go against all odds and tell the people through the Tribunal, of how the public funds were expended. In line with the principles of natural justice, he had the opportunity to explain to his voters and the nation as a whole, as to how and where he expended the public funds, but refrained to do so. The leader’s silence does indicate that he may have something to hide. 

In my view it is preposterous enough for the leader to have pleaded not guilty and yet unable to explain of whereabouts the peoples’ monies were expended, to the least, by the legal norm of acquittals. The non-acquittals were not only over one period but over three consecutive periods or years.

Acquittal is a process of accountability to show whether the public funds were expended in a properly legal manner and for the purposes intended for the funds. Lack of acquittal would certainly raise suspicion as to how and where the funds were applied. Therefore the process done properly would erase any doubts of abuse and mismanagement of public funds.

Furthermore, in my view that the amounts of money involved is a serious enough culpability for the leader to shoulder the blame. The amounts involved are K195,000.00 of Rural Transport Development Program Fund 1993, K20,000.00 of Law and Order Fund 1993 and K1,577,640.00 of Rural Transport Development Program Fund 1995.

The Public Finances (Management) Act 1994, hold him to be the chief accounting officer. It does not hold anyone else to be an "accountable officer". The funds were appropriated to him for the use of it in his electorate, and as the "accountable officer" he had the duty to acquit the funds himself or that he ensures that the acquittals are lodged after the use of the funds. He did neither of those necessary options, according to evidence.

To my mind this culminates to serious culpability on the part of the leader.

In relation to allegation 16, the Leader held a nationally important portfolio, the Ministry of Works and Transport, which was responsible for road and sea transport, which are significant modes of transport in the development of Papua New Guinea.

The K21.8 million under the Rural Transport Development Program Fund of 1995, as the title implies were intended to improve the road infrastructure network of rural areas of the country where each of the 109 Members of Parliament may have identified in their respective electorates.

By the conduct of the leader, six electorates were deprived of the use of those public funds which were rightfully theirs in every sense of it. 

In my view his actions are not only unconstitutional but undemocratic. The political ministry he held belongs to the people of Papua New Guinea and as such all Papua New Guineans, regardless of their cultural background, language, tribe, or region, have equal constitutional rights to be treated equally and fairly, more so in this case, to receive their share of the national wealth.

Furthermore, the actions of the leader do not promote the constitutional spirit of a united Papua New Guinea. 

Mr. Lomai submitted that there was no evidence that the remaining 108 Members of Parliament had lodged any acquittal processes prior to being appropriated their portion of the funds. This may have been the basis on which six electorates were not appropriated their portion. In my view, this argument is not only narrow but is misconceived. The funds were intended to be equally and fairly distributed to all the 109 Members of Parliament including the leader. It is not the concern of the leader to see that the acquittals are made prior to allocation of funds. That is the function of the administering authority, the Department of Works and Transport and the onus of acquittal is on each and every Member of Parliament.

What the leader has done is not only serious and reckless but also amounts to attempting to destabilize the unity of Papua New Guinea. Thus it adds to serious culpability on the part of the leader and therefore demands to attract serious censure to preserve the people of Papua New Guinea from all forms of corruption and misconduct practices by its leaders as required by the Constitution.

The public policy and public good consideration was not raised by Mr. Lomai, which implies that the leader concedes to his actions on the matters he has been found guilty of and that public good and public policy requiring him to be censured.

But for the purposes of fulfilling the requirement of Section 28 (1A) of Constitution, I will cite a few cases adopted in the Michael Nali (No 1) Tribunal.

In Nalor, Benzon & Co. Ltd -v- Kraische Industries Gesellschaff [1918] 1 KB at 342, McCardie J said:

"The phrase "public policy" appears to mean the ideas which for the time being prevail in a community as to the conditions necessary to ensure its welfare, so that anything is treated as against public policy if it is generally regarded as injurious to the public interest. It is well settled that a contract is not enforceable if its enforcement would be opposed to public policy. Public policy is not, however, fixed and stable. From generation to generation ideas change as to what is necessary or injurious, so that "public policy" is a variable thing. It must fluctuate with the circumstances of time".

The Nali (No 1) Tribunal went on and said: -

"It may be said that from this principle that public policy exists and involves for the public good and welfare, whether it be a government policy or an accepted custom or an accepted legal norm or principle, when it is violated, it becomes injurious to the public interest and good".

I adopt these principles.

It is undoubtedly good government policy, and an accepted legal norm under the Public Finance (Management) Act 1994, that all public funds appropriated to an "accountable officer" must be acquitted. By this process doubts of abuse and mismanagement of public funds are erased from the mind of ordinary people and the national population at large.

The desire to do that is for purposes of good governance, accountability and transparency, but the lack of it would be injurious to the public and must attract serious censure.

ALTERNATIVE PENALTY PROVISIONS:

Having discussed the restraining provisions or criterions, which are already made out, the Alternative Penalties Act 1976 seems to be stringent or rigid. In terms of a fine, which is the next penalty down after the maximum penalty of dismissal from office, it provides for a fine not exceeding K1,000.00.

Although there is a range of alternative penalties ranging from a fine to reprimand, the amount of fine to be imposed is inadequate in view of a number of misconduct charges as determined, the degree of culpability that vary from case to case, the seriousness of charge in terms of the amounts of money involved and, etc.

In view of the discretion a tribunal has, particularly, in terms of the monetary fine, it is very much restricted. It is my view that the alternative penalty provision in the Organic Law gives us no jurisdiction to combine and enforce one or more of the penalties on the counts found guilty of.

Hon Peter Yama has been found guilty on three counts of non acquittal of public funds in several thousands of Kina and in one count over K1, million of public funds.

Do I only fine him with the amount as stipulated by law, because the leader’s "culpability has been lessened in respect of range, number and extend?"

By contrast, what would be the expectation and perception of the people of Papua New Guinea at large, if a leader is merely fined in the present circumstances, where the expended public funds have not been explained and acquitted?

The Supreme Court in Reference No 1 of 1978; Re Leo Morgan [1978] PNGLR 460 stated emphatically that the paramount consideration of "the constitution [IS] in so far as it seeks to preserve the people of Papua New Guinea from misconduct by it’s leaders".

The same message was echoed succinctly by the Supreme Court in SCR2, of 1992 [1992] PNGLR 336. It stated that; "the entire trust and the primary purpose of the Codes are, "to preserve the people of Papua New Guinea from misconduct by its leaders". We are of the opinion that it is entirely consistent with the entire thrust and primary purpose of the Leadership Code regime to preserve the public from improper and corrupt conduct of leaders and to hold the leaders accountable through the comprehensive and elaborate mechanism for enforcement, "that a person holding a current leadership office may be proceeded against in respect of alleged misconduct in leadership office which he had formerly held, and if found guilty, dismissed from his current office".

I have a constitutional duty in exercising my powers as a member of a Leadership Tribunal appointed by virtue of the Leadership Code, to perform my duties without fear or favour. That duty extends to the requirements of the Constitution as spelt out in the above Supreme Court cases. I intend to do just that.

In my view any of the alternative penalties available to me would not, if applied equate to the large sums of money expended without explanation and acquittals by the leader, nor would the ordinary Papua New Guineans see this to be justifiable in view of the circumstances of this case.

I am mindful of your achievements both in your private life and public life. I am also mindful of what you have achieved and did for the country as outlined briefly in your background brief.

However, they will not restitute what was expected of you as a leader, when you have expended large sums of public fund and have not explained to whereabouts they were applied and yet not acquitted them.

In applying the totality principle as enunciated in Peter Peipul’s case, I now recommend to the Governor General pursuant to Section 27(5) Organic Law and Section 28 (1) (g) (ii) Constitution that for each count you have been found guilty, you be dismissed immediately from office as the Member for Usino/Bundi Open Electorate in the National Parliament and a Member of the Madang Provincial Assembly.

P. Monouluk: On the 10th November 2004 we unanimously found you guilty on the three of the 34 allegations of misconduct in office. The allegations you have been found not guilty on were Allegations # 1, 2, 4 – 9, 11 – 15 and 17 – 34. The remaining allegations you have been found guilty on were Allegations # 03, 10 and 16, that are now restated in our Chairman’s judgment on pp. 1 – 6.

After we have announced our decision we then adjourned to the 12th November 2004 for submissions by both counsels to address us on penalty. Your counsel, Mr. Ben Lomai urges us, for each individual conviction, to reprimand you or alternatively fine you a sum of K1,000.00 (a total of K3,000.00). The Prosecutor, Mr. Pondros Kaluwin, on the other hand, insists that your misconducts in office were serious therefore this Tribunal must hand you the ultimate penalty of dismissal from the office you presently hold for each of the three convictions. Having received these submissions we then adjourned to today for our decision.

Since there are conflicting views offered by both counsel as to the type of penalty appropriate for you, the onus is now on us to decide for you an appropriate penalty or set of penalties bearing in mind the relevant penalty provisions applicable to you as a leader.

The Appropriate Law.

The laws applicable subsequently to any leader found guilty of misconduct in office are the penalty provisions under the Constitution, the Organic Law on the Duties and Responsibilities of Leadership (OLDRL) and the Leadership Code (Alternative Penalties) Act 1976. There is no need to restate these provisions here. They are adequately covered by our Chairman at pp.7 – 9.

The effect of these provisions particularly ss. 28(1) and (1A) Constitution is that where a leader is found guilty of misconduct in office he must be dismissed from holding any public office unless there is no serious culpability on his part and public policy and public good determines that he remains in office but be penalized in some other form or manner as stipulated under the Leadership Code (Alternative Penalties) Act 1976.

This is a watered-down approach where the maximum and the ultimate of the penalties are given the first-right-of-refusal unlike the approach taken in criminal proceedings in a bottom-up manner. This watered-down approach long held and followed by the past tribunals basically acknowledges the hierarchy of laws that are enshrined in the Constitution beginning with the Constitution itself, followed by the OLDRL and the Leadership Code (Alternative Penalties) Act 1976.

The effect of this approach is that unless ss. 28(1) and (1A) Constitution is applicable other penalties down the hierarchy of laws can be considered and if appropriate then applicable.

Submissions.

Your counsel submits that we should follow the approach taken in the case of John Nilkare [1998] PNGLR 472. He says that in that case the Supreme Court said that the culpability of the Honorable Nilkare was greatly reduced in respect of range, number and extent after the court had quashed 17 of his 24 convictions leaving undisturbed the remaining seven resulting in the leader merely fined K1,000.00 each.

Your counsel says that in your case the findings in your favour by this Tribunal in dismissing all but one allegation in each of the three category of allegations has the same effect as seen in the Nilkare case thus lessening your culpability. On that basis your counsel now insists that we are bound by that Supreme Court decision therefore we must consider penalties other than that of dismissal from public office for your three convictions.

Mr. Kaluwin, on the other hand, submits that you had a greater role to play in these misconducts in office. No one else should share or help shoulder your responsibility. You, at all material times, were responsible for these large sums of public funds and it was your duty to acquit these funds. He says that despite your legal responsibility not one single toea was ever acquitted by you therefore he says that you are culpable and public policy demands that you be dismissed from office.

Your counsel appears to place a heavier reliance on this case of Nilkare. This is fairly obvious in all his submissions in respect to the three allegations you have been convicted of. The picture your counsel wants us to accept is that since your allegations were greatly reduced in numbers to only three convictions it now has the effect of greatly lessening your culpability.

I am afraid there is a big difference between your case and that of Nilkare. In the Nilkare case the Supreme Court found that the leader had used well certain public funds on their intended purposes despite the fact that certain procedures were not followed. This is what the court had to say:

"Further, we have determined in the majority of the counts relating to the charges laid under section 27 of the Constitution that though the leader was guilty for failing to comply with proper procedures, large sums of money were indeed applied for public benefit." (emphasis mine)

After the Supreme Court had quashed the 17 of the 24 remaining convictions it appears that no longer exist those convictions that highlighted serious culpability on the part of the leader although present during the leadership tribunal stage. Therefore the Supreme Court was able to consider fines instead as the appropriate penalties for the leader not so much of the effect of reduced number of convictions but as I have highlighted above the Court was satisfied that the public funds ‘were indeed applied for public benefit’. In that sense at least the authorities knew how and where these public funds were expended and the people to whom the monies were meant for had in fact benefited.

One case worth comparing with the Nilkare case to show that the number of conviction does not impact on culpability is the later tribunal case of the Honourable Jim Kas. This particular case will greatly help us better appreciate the fact that no matter how many conviction a leader may have against him, whether it be one or ten convictions, only one is sufficient to have the leader concern dismissed from public office.

In the Kas’s case the leader pleaded guilty to the only allegation against him arising from an incident at Madang Airport. The leader was drunk and in the company of drunken policemen and attempted to board an aircraft that was already preparing to take off by ordering the policeman who was driving his car to drive onto the aerodrome. This particular incident had wider media coverage.

The tribunal concluded that Kas’s action amounted to serious culpability and as to public policy and public good the leader had breached the standard of conduct expected not only by the Madang people but also the people of Papua New Guinea therefore was recommended for dismissal from public office.

Kas may have got himself a successful National Court review had it been the law as suggested by your counsel in the Nilkare case that the lesser the number of conviction the lesser the culpability.

Another point that I believe your counsel should have addressed us on is the question of s. 28 Constitution. We know that when a leader is convicted of misconduct the first penalty provision to start of with is s.28. This has been the practice in the past with all the leadership tribunals. To follow the suggestion by your counsel would now mean that no longer is s. 28 the starting point but some other provisions of the law further down the line. It would mean that for those leaders with more convictions they will have to start of with s. 28. Those with lesser number of convictions will start with other lesser penalty provisions below. I believe that is not the scheme of the penalty provisions. All convicted leaders are treated the same irrespective of the number of convictions they may have secured.

It is apparent that serious culpability does not follow the number of convictions a leader may have. It is really a question of facts surrounding individual circumstance and situation as we have seen in the Kas’s case and has nothing to do with the number of conviction your counsel would liked us to believe.

Bearing in mind that you have three convictions against you I must now ask myself this very important question, do you deserve to still remain in office as the national Member of Parliament for the Usino/Bundi electorate in the Madang Province? To answer this question I must now start with the culpability test.

Culpability

1. Millions of Kina in Public Funds.

It is now established that you have not acquitted one single toea of public funds namely the K195,000.00 of the 1993 Rural Transport Development Program Fund(RTDP); and the K20,000.00 of the 1993 Law and Order Fund; and the K1,557,640.00 of the 1995 RTDP Fund totalling all together K1,772,640.00 (almost K2 million).

We are not talking about hundreds or thousands of kina but monies in public funds that run into millions of kina. The fact that it involves monies in that vicinity is indeed serious business and therefore demands prudent and diligent care in the administration of these public funds. Since these monies were under your custody and control it gives you great power and influence over the use of them. As the custodian and the trustee of these funds it is absolutely important that you should have taken all necessary actions and steps to ensure that these monies were safe and spent well on their intended purposes. Having done so, you now as the ‘accountable officer’ under s.6 Public Finances (Management) Act 1994 is legally required to acquit all these public funds to the appropriate administering authorities concerned.

In this case it appears that no care was taken in the appropriation of these funds. Except for the K20,000.00, the K195,000.00 and the K1,557,640.00 were in total disarray. The K195,000.00 was allocated to the Ambesugi company, although was around for some time, was not functioning well. We saw in Mr. Klink’s evidence, who was the then project manager of that company, that he had no idea how the then general manager Mr. Dick Karim was administering the company, particularly the funds. He said there was no communication between himself and the general manager and when he took over as the general manager he found to his dismay that there were no funds available – that funds were already exhausted. Consequently road projects were never started or completed. Mr. Klink said he could not respond to your numerous requests for fund updates simply because he had no idea what has become of these funds.

As the custodian and the trustee of these public funds you did not take extra care before you committed these funds to a company that we now see was not administratively and financially sound. As I have stated the company has had difficult working relationship between senior managers. Mr. Klink was particularly critical of the former general manager as being incompetent. As a civil engineer by profession, Mr. Klink said, the general manager had no experience and idea to administer a company. As a result funds were wasted, projects were not completed and ordinary people continue to suffer, and government policies and objectives not implemented.

In relation to the K1,557,640.00 of public funds it is difficult for us to assume your role and responsibility to explain how and where these monies were expended. All we know is that you got these monies, nothing more nothing less. How and where theses funds were spent is something peculiar to you. You inability to acquit these funds and your decision not to explain to this tribunal did not help anyone for that matter, not even your own people.

2. Non-acquittals.

It is evident that having received all these huge sum of public funds totalling K1,772,640.00 you failed to acquit one single toea of all these monies. The common denominator is that you never made any attempt at all to acquit. It is absolutely clear that not once, not twice but three times you failed the relevant authorities to comply with your legal duty to acquit these public funds. 

As the ‘accountable officer’ you were required by law to acquit every single toea of these public funds. Despite the obligation placed upon you did not acquit the K195,000.00 RTDP fund and the K20,000.00 Law and Order fund at the end of 1993 and the K1,557,640.00 RTDP fund at the end of 1995. As a result Ms Margaret Galama had to depose to a statutory declaration in August 1996 in respect to the RTDP funds for 1993 and 1995.

You cannot say it was the responsibility of others to acquit these public funds you initially got. That responsibility is placed upon you by law and only you must shoulder that responsibility. It is not a shared responsibility and therefore the buck stops with you. As a responsible leader it is your duty to take all appropriate and necessary steps to ensure due compliance with the law.

The practice of acquittal is a very important financial process whereby administering authorities of public funds are able to keep track on how and where public funds are expended. This process also ensures accountability and transparency on the part of leaders and others who may deal with public funds. That is why it is mandatory on all ‘accountable officers’ to acquit public funds. As an entrepreneur yourself you can appreciate the importance of keeping account and also being accountable.

In instances where acquittals are not forthcoming it will obviously prove difficult for the administering authorities to track down the use of these public funds. When that happens it is inevitable that doubts and suspicion will creep into the minds of the public.

At least for the K195,000.00 and the K20,000.00 we have a fair idea where these monies may have ended up even though there are no acquittals. Not so the K1,557,640.00. We know that you got that amount of money yet there is absolutely no evidence where this huge amount of money went to. To make matters even worse you decided that in your own best interest you would not explain to this tribunal and the public how and where this money was spent.

We know from Mr. Robert Kalasim’s evidence that you were a very generous leader who likes helping people. I believe you would be of great help to all of them now had you come out before this tribunal and explain the use of all these funds, particularly the K1.5 million. 

Your counsel cannot brush aside the fact that the monies involved ran into more than a million kina and the fact that you failed to acquit on three separate occasions to say you were ignorant to the fact that you had to acquit these public funds. This is a slap in the face of ordinary Papua New Guineans. You do no have to go to a law school to understand the obligation placed upon you by s. 6 Public Finances (Management) Act 1994. In any case we all know too well that the ignorance of the law is no excuse.

3. No Corrective Measures Taken.

May I reiterate that you have failed to acquit public funds not once, not twice but three times.

There is no evidence that you have made any attempt at all to take corrective measures thereafter to avoid similar failures in other subsequent acquittal processes. It would have painted a good picture of yourself had it been brought to our attention that you have taken corrective measures in an attempt to rectify the defects and failures in your acquittal processes. That is not the case we see today. Despite that you continued on, on your road of ignorance as your counsel wants us to see. If I may add here to that not only you were ignorant, you were also careless, irresponsible and reckless in your handling of these public funds. At no time you stopped to ask yourself if you had done the right thing. Had you done so, I believe it would have reflected positively in your acquittals subsequently. 

4. No Explanation.

This particular point hinges on the question of genuiness. At the close of the prosecution case and the ruling on the no-case submission you were given an opportunity to explain yourself. Despite that you opted to remain silent.

As a leader by choice – elected by the people, you are accountable to those who have placed their trust in you when they first voted you into office. These are the people in whom you derive your powers as a leader. Because of them we call you a leader. Without them you cannot be deemed a leader. Being a leader, you no longer remain a private figure, you have now become a public figure by virtue of your status in your community and at the national scene. With that come additional responsibilities. You now take a position of role model to your people and to others as well. In the National Parliament you act as a mouth piece for your people. Almost everything you do, others see you as a representative of your people.

The fact that you are suspended as a Member of Parliament pending the out come of this Tribunal does not relinquish your leadership role. You still command a great respect and following from the people as we see today. These people behind you have been here since the commencement of this proceeding. Whether they are from Sumkar or Usino/Bundi electorates is not clear. Many more are keeping watch of this proceeding over the mass media. What is apparent though from all these is that these people want to know what is happening with their leader. They have heard witnesses give their sides of the story. Now they want you also to tell your side of the story. They want you to tell them how and where these public funds were expended. Despite that you have exercised your right to remain silent. While that may be your prerogative, may I make it clear that your silence is no justice at all to the people you claim to represent and the nation as a whole. As we have stated on our ruling on guilt, that no one else than you can best explain the use of these public funds, particularly the K1,557,640.00. 

At the commencement of these proceeding early last year you went to the National Court and subsequently ended up with the Supreme Court to basically assert your right to be heard. There is no better time to assert this right of yours then now. Despite this available opportunity you made up you mind to shy away. How else can you explain you actions.

I am not sure what your counsel meant when he said that you were genuine in trying to ascertain how the K195,000.00 of public funds were spent by the Ambesugi company. I believe if you were genuine at all then after you had insisted on your right to be heard before the higher courts and subsequently pleaded not guilty to all the 34 allegations of misconduct in office, this tribunal would be the best forum for you to appear and exercise your right to be heard. This is my idea of genuiness and sincereness.

Another point I wish to raise under this head is the peoples’ right to information. While it is your right to remain silent on these matters may I remind you that these people also have their rights. One of these rights is the right to information. I say this because the position you hold as a leader belongs to them. The powers you exercise as a leader also belongs to them and the monies that are now unaccounted for belongs to them. Therefore it is only right that you be answerable to them through this Tribunal.

5. Unequal Distribution of Public Funds. 

In 1995 K21.8 million was allocated to the Department of Works and Transport in which you were the minister responsible. These public funds were meant to be divided equally between the 109 Members of Parliament, including you. Each one of you was suppose to have received K200,000.00.

As the minister responsible for the Department you got for yourself six times more than your own share ending up with K1,557,640.00 altogether. The result of your action meant that six open electorates may have missed out on government funding in road construction and maintenance for that year alone.

Your counsel said that even though these monies were available it does not mean that all Members of Parliament were entitled to them. Only those who were able to acquit the funds from the previous year were entitled. Your counsel did not say anything on the issue of fairness in the distribution of these funds.

Whether or not Members of Parliament acquit their funds for the previous year is not the issue. The real issue is that you have unfairly got for yourself public funds over and above your legal limit thus depriving your other fellow Papua New Guineans of roads services for that year of funding. Your counsel seems to say that because other Members of Parliament have not acquitted, it is alright for you to get their unallocated funds. There is no where in the guidelines that would support such misleading assumption.

The manner in which you have allocated to yourself six times more than your approved and recognized share of K200,000.00 clearly contravene the principles of fair and equitable distribution of public funds stipulated under the National Goals and Directive Principles. As a result six other electorates were not able to meaningfully participate under the government policies of that year of funding.

In addition to that having received such an amount of public funds you did not make any attempt at all to acquit these funds to this day. Your silence on the matter did not help either.

6. Government Policy. 

Your action in allocating K195,000.00 in 1993 to an unstable company that consequently resulted in various in-completed road works and also not distributing fairly the K21.8 million in 1995 and in doing so got for yourself six times more than your legal limit, meant that government policies and objectives for those two years of funding may not have been implemented in your Sumkar electorate and also in those electorates deprived of their shares in the K21.8 million.

It appears that your action may have been counterproductive to the government in which you were a minister in. The people usually vote in leaders into the National Parliament so that these leaders can facilitate development prospects for them. There is nothing worse than a leader who only hinders delivery of goods and services to his own people. Your actions in 1993 and 1995 not only deprived your people of goods and service but also hindered government policies and objectives for those two respective years in your own Sumkar electorate and those other electorates which should have benefited under the 1995 RTDP. 

Although there is no evidence that you may have corruptly deal with these public funds I am reminded that the Leadership Code is there to protect the people not only from corrupt leaders but also from their improper conduct such as we see your case.

I agree with Mr. Kaluwin that you as the Leader remain at all material times responsible for all these public funds; hence, the blame must fall at your feet and should remain there. You cannot shift the responsibility of acquitting these funds to another person or entity.

The acquittal process is one of the ways, if not, the only way we can be sure that public funds were properly expended and as the ‘accountable officer’ concerned it is mandatory under s.6 Public Finances (Management) Act 1994 for you to acquit. There is no other way you can bypass this provision of the law.

Your inability to acquit these millions of kina in public funds, not once, not twice but three times only increases your culpability. I do note that in the Michael Nali Tribunal No. 2 the tribunal said at p.15 that because the leader did not acquit public funds on one occasion his culpability therefore increased. In the present case you did not acquit on three separate occasions therefore your culpability must increase in proportion with your number of non-acquittals. It therefore must increase three-fold.

It is disturbing to note that these non-acquittals of public funds happened over a period of time yet no appropriate actions were taken to counter such. At no time you realized your mistake and stop to take appropriate corrective measures to rectify the abnormality in your handling of these public funds. Your silence and inaction on the pressing matter only goes to show your ignorance of the law. In the Mao Zeming Tribunal the leader knew that his associates were not distributing public funds according to set guidelines yet he took no steps to correct them. As a result the tribunal found his inactions only increased his culpability. The same is also true in your case. Your inaction only increases your culpability.

I am reminded that you have failed to distribute fairly and equitably K21.8 million in public funds. The fact that you got for yourself K1,557,640.00 which was six times more than your approved share is indeed a cause for concern to all Papua New Guineans. As a leader you are bound by the National Goals and Directive Principles by virtue of s.25 Constitution. Being a leader you must be seen to act fairly to all manner of people because not only you were seen as the leader for your own electorate but also a national leader and a minister in the government. Such behaviour is unbecoming of a national leader therefore your culpability is serious.

As a minister in the government at that time that was responsible for policies, your actions in allocating public funds to an unstable company that resulted in various in-complete work and further failed to distribute fairly public funds and as a result of that work were not carried out in some electorates in the country, you must take the blame for being an obstacle to your own government policies and objectives therefore your culpability must increase further.

Public Policy Consideration.

Based on your overall conduct that has now increased your culpability the next point of consideration is the public policy and public good. This particular point is undefined. In past cases it was left to individual tribunals to come up with their own assessment of what they think public policy and public good was. In most cases such have seen many leaders being dismissed from office.

In a situation where a leader fails to furnish his annual returns to the Ombudsman Commission, public policy and public good may be more sympathetic towards him; hence he may be recommended for an alternative penalty other than dismissal from office. 

Your situation is different. In your case you failed to acquit public funds on three separate occasions. These funds amounted to almost K2 million. On one instance you gave funds to a company that turned out to be unstable. In turn you failed to acquit. In another instance you allocated funds for a law and order exercise. Once more you failed to acquit. On the third occasion you unfairly distributed K21.8 million and got for your former electorate K1,557,640.00 and further more failed to acquit. Despite all these you did not take appropriate corrective measures and your excuse is ignorance.

Your actions and inactions are indeed a cause for concern. There is no evidence of extenuating circumstances that was brought to our attention that may explain your actions or inactions. The only explanation your counsel gave was that you were ignorant. 

For me to recommend a penalty other than dismissal would down play the seriousness of your misconduct and, to some extent, may possibly condone and encourage this type of misconduct by leaders. I am also sceptical because of the fact that there is no indication that you will not re-offend, this time against the people of Usino/Bundi judging from your ignorance therefore I have a duty to protect them in the interest of public policy and public good.

Let me reiterate once more that there is no evidence of corruption against you, however, I am mindful of the fact that the Leadership Code is there to curtail not only the acts of corruption by our leaders but also their other misconducts as well with a view to preserve the people of Papua New Guinea, and any leader whose conduct is highly improper must not expect to remain in office. Only those leaders who are willing to make sacrifices for the good of this nation can expect to be protected by the Code.

The Constitutional Planning Committee (CPC) made an interesting opening remark in its Final Report (Chp.3 p1.):

"The success of this nation, we believe, depends ultimately on its people and their leaders. No amount of careful planning in governmental institutions or scientific disciplines will achieve liberation and fulfilment of the citizens of our country unless the leaders – those who hold official positions of power, authority or influence – have bold vision, work hard and are resolutely dedicated to the service of their people."

Although brief, this remark has a profound meaning. It calls for committed, dedicated and responsible leadership – men and women who are dedicated to the service of their people to ensure success for this nation. In short it means ‘a leader can make or break this nation’. Success for this nation cannot be attain if leaders lack these attributes and continue to ignore their primary role and responsibilities.

As a leader by choice, you have voluntarily assumed additional responsibilities in your daily life and conduct and in so doing, you have rendered yourself accountable to an increased number of people and authorities thus you must ensure that at all times your conducts, whatever they may be, must not be called into question. This was the view held by the Supreme Court in the case of Leo Morgan [1978] PNGLR 460 at p.464 when reaffirming the CPC’s view on the Leadership Code.

I do note that you have contributed immensely to this nation through various levels of the community. However, I am reminded that your misconducts were not committed under any extenuating circumstances for me to consider your background as a mitigating factor, especially after serious culpability has been established. It may be possible to do so in instances where alternative penalties are considered viable.

In applying the totality principle on your overall conducts, public policy and public good demands that you are unworthy to remain in office, at least for the next three years. Accordingly, for your three convictions I now recommend that you be dismissed from public office as the national Member of Parliament for the Usino/Bundi Open Electorate in the Madang Province.

The Tribunal: By the majority decision we now recommend that you be dismissed from office as the National Member of Parliament for the Usino/Bundi Open Electorate in the Madang Province. A copy of this recommendation will be forwarded immediately to the Governor General, the Speaker of the National Parliament and to the National Executive Council.

Hon. Justice Timothy Hinchliffe, CBE
Chairman

F. Manue, SM.
Member

P. Monouluk, SM.
Member