N5210(T)
PAPUA NEW GUINEA
THE LEADERSHIP TRIBUNAL APPOINTED PURSUANT TO SECTION 27 (2) AND (7) (e) OF THE ORGANIC LAW ON DUTIES AND RESPONSIBILITIES OF LEADERSHIP

AND

IN THE MATTER OF THE HONOURABLE MARK MAIPAKAI (MP) ("the Leaders"), MEMBER FOR KIKORI OPEN ELECTORATE AND MEMBER OF GULF PROVINCIAL ASSEMBLY AND MINISTER FOR INTER-GOVERNMENT RELATIONS AND DISTRICT DEVELOPMENT

REFERENCE NUMBER L.T. NO.2 OF 2012 (NO. 6)
BEFORE:
HONOURABLE JUSTICE SALATIEL LENALIA -Chairman-
HIS WORSHIP MR. IGNATIUS KUREI – Senior Magistrate – Member
HER WORSHIP MS. NERIE ELIAKIM – Senior Magistrate – Member

Waigani
2012: 16th, 27th February,
1st, 7th, 9th, 3rd March,
11th, 12th, 13th, 16th, 17th, 19th, 20th, 24th, 15th April,
31st May & 6th June.

LEADERSHIP TRIBUNAL – Leadership Code – Misconduct in office – Failure to submit annual statements to the Ombudsman Commission – Nature of facts and evidence – Leadership Tribunal to inform itself in such a manner as it deems proper – Admission of charges – Either for dismissal under s. 27 (5) (a) or (5) of the Organic Law on Duties and Responsibilities of Leadership or recommend other penalty under s. 28 (1A) of the Constitution (Leadership Code)

LEADERSHIP TRIBUNAL – Where some allegations are not admitted, those allegations which had been admitted must be adjourned awaiting the outcome of allegations on which denial had been made as to the guilt or otherwise of the Leadership 
LEADERSHIP TRIBUNAL – Powers of the Tribunal to dismiss a Leader where if it finds that there was either "serious culpability" or not on the part of the Leader and "the public policy and the public good" require that a Leader be recommended for dismissal.

Cases Cited:
Peter Ipu Peipul v Hon. Justice Sheehan & Others (2002) SC 706
John Nilkare v The Leadership Tribunal (1997) SCA NO. 46 of 1996
Reference by the Public Prosecutor Re: Hon. Peter Ipatas. Governor of Enga, MP (2006) N3078(T)
Reference by Public Prosecutor in Re: Hon. Melchior Pep (MP (10.10.92)
In the matter of Hon Dr. Puka Remu MP (2006) N3099
Reference by the Public Prosecutor Re: Hon. Gabriel Dusava, MP (10.10.97)
Reference by the Public Prosecutor Re: Hon. Edward Ramu Diro CBE, OStj, MP Unnumbered of 21st September 1991
Re James Eki Mopio ((9.12.81)

Counsel:

Mr. P. Kaluwin, the Public Prosecutor
Mr. P. Paraka with Mr. M. Kombri, assisting the Leader

DECISION ON PENALTY

6th June, 2012

1. BY THE TRIBUNAL: This is the Leadership Tribunal decision after the Leader pleaded guilty to seven (7) allegations and one on which he was found guilty on. The Leader pleaded guilty to Allegations 2 to 8. He denied Allegations 1, 9 – 15. A trial was conducted on the ones he did not admit to and on 15th May the Leader was found not guilty on counts 1, 9 – 15, while he was found guilty on Allegation 16.

2. The following is the decision on the penalty for the 8 Allegations.

3. The Public Prosecutor's Reference dated 2/2/12 contained 15 counts of alleged misconduct in office by the Leader and the final one on 3 extra marital affairs. Allegations 2 – 8 related to the Leader's failure to submit his annual statements to the Ombudsman Commission.

4. For purposes of penalties, we summarise the brief facts of each allegations. For ease of reference, and to reflect the nature of each allegation made against the Leader, we quote the summary in form presented to us as best as possible and 16 which he was found guilty on. Following each quote are brief facts and evidence for purposes of determination of appropriate penalties.

ALLEGATION 2:

That from 30th July 2001 to 7th December 2002 the Leader failed without reasonable excuse to give to the Ombudsman Commission his annual statement for the period 30th July 2001 to 29th July 2002 in accordance with Section 4 (1) of the Organic Law on the Duties and Responsibilities of Leadership.

5. The facts relative to this allegation are that for the period from 30th July 2001 to 7th December 2002 the Leader failed without reasonable excuse to give to the Ombudsman Commission his annual statement for the period 30th July 2001 to 29th July 2002 in accordance with Section 4 (1) of the Organic Law on the Duties and Responsibilities of Leadership. All facts related to such failure are contained in various documents annexed to the Affidavit of the Chief Ombudsman Mr. Chronox Manek. By not submitting his annual statement is a breach of Section 4 (6) (a) of the Organic Law on Duties and Responsibilities of Leadership.

ALLEGATION 3:

THAT from 30th July 2003 to 30th October 2004 the Leader failed without reasonable excuse to give to the Ombudsman Commission his annual statement for the period of 30th July 2003 to 29th July 2004 in accordance with Section 4 (1) of the Organic Law on the Duties and Responsibilities of Leadership.

THEREBY being guilty of misconduct in office under Section 4 (6) of the OLDRL.

6. The facts of allegation 3 say that from 30th July 2003 to 30th October 2004 the Leader failed without reasonable excuse to give to the Ombudsman Commission his annual statement for the period 30th July 2003 to 29th July 2004 in accordance with s4(1) of the Organic Law on the Duties and Responsibilities of Leadership.

7. The Leader pleaded guilty to this Allegation. The Tribunal has perused all relevant materials. All material evidence in the affidavit by the Chief Ombudsman establish that, the Leader without reasonable explanation failed to furnish to the Ombudsman Commission his annual statement for the period from 30th July 2003 to 29th July 2004.

8. The requirement under s.4(1) of the OLDRL is clear that the Leader must give his or her annual statements within three months. This is misconduct in office contrary to s.4(6) of the OLDRL. When the Leader failed to furnish such annual statements, he is guilty of misconduct in office.

ALLEGATION 4:

 THAT from 30th July 2004 to 30th October 2005 the Leader failed without reasonable excuse to give to the Ombudsman Commission his annual statement for the period from 30th July 2004 to 29th July 2005 in accordance with Section 4 (1) of the Organic Law on the Duties and Responsibilities of Leadership.

THEREBY being guilty of misconduct in office under Section 4 (6) (a) of the OLDRL.

9. On Allegation 4, the Public Prosecutor says that, from 30th July 2004 to 30th October 2005 the Leader failed without reasonable excuse to give to the Ombudsman Commission his annual statements for the period from 30th July 2004 to 29th July 2005. Failure to give annual statement offends against s. 4 (1) of the OLDRL. Where a Leader fails to submit annual statement, it is misconduct in the office he or she holds contrary to s.4 (6) (a) of the OLDRL.

10. Once again, the Leader pleaded guilty to this count. The evidence filed in support of this Allegation is very clear. The Leader failed without any reasonable excuse to furnish his annual statement for the period between 30th July 2004 and 29th July 2005.

ALLEGATION 5:

THAT from 30th July 2005 to 20th October 2006 the Leader failed without reasonable excuse to give to the Ombudsman Commission his annual statement for the period from 30th July to 29th July 2006 in accordance with Section 4 (1) of the Organic Law on the Duties and Responsibilities of Leadership.

THEREBY being guilty of misconduct in office under to Section 4(6) (a) of the OLDRL.

11. On this Allegation, the evidence and facts relating to the period dating from 30th July 2005 to 20th October 2006, they say that the Leader failed without reasonable excuse to furnish to the Ombudsman Commission his annual statement for the period from 30th July 2055 to 29th July 2006.

12. The OLDRL says that, the Ombudsman Commission or other authority may by notice in writing to a person to whom s.4 (1) of the Organic Law on the Duties and Responsibilities of Leadership. Under s.4 (6)(a) of the above law, it is misconduct in office and any person failing to comply with these requirement is guilty of misconduct in office.

ALLEGATION 6:

 THAT from 30th July 2006 to 14 November 2007 the Leader failed without reasonable excuse to give to the Ombudsman Commission his annual statement for the period from 30th July 2006 to 29th July 2007 in accordance with Section 4(1) of the Organic Law on the Duties and Responsibilities of Leadership.

 THEREBY being guilty of misconduct in office under Section 4(6) (1) of the OLDRL.

13. The facts and evidence tendered to this Tribunal by the Chief Ombudsman establish that between 30th July 2006 to 14th November 2007 the Leader failed without reasonable excuse to give to the Ombudsman Commission his annual statement for the period from 30th July 2006 to 29th July 2007 in accordance with Section 4 (1) of the Organic Law on the Duties and Responsibilities of Leadership. The Leader pleaded guilty to this allegation. He is guilty of misconduct in office pursuant to s.4 (6) (1) of the OLDRL.

ALLEGATION 7:

 THAT from 30th July 2007 to 8th November, the Leaders failed without reasonable excuse to give to the Ombudsman Commission his annual statement for the period of 30th July 2007 to 29th July 2008 in according with Section 4 (1) of the Organic Law on Duties and Responsibilities of Leadership.
 
 THEREBY being guilty of misconduct in office under Section4 (6) (a) of the OLDRL.

14. As in the previous five Allegations, once again, the Leader pleaded guilty to this count. The facts to which he pleaded guilty to show that, from 30th July 2007 to 8th November 2008, the Leader failed without reasonable excuse to give to the Ombudsman Commission his annual statement for the period 30th July 2007 to 29th July 2008. Non compliance with the requirement of s.4(1) of the OLDRL, borders of being guilty of misconduct in office contrary to Section 4 (6) (a) of the OLDRL.

ALLEGATION 8:

 THAT from 30th July 2008 to 14th October 2009 the Leader failed without reasonable excuse to give to the Ombudsman Commission his annual statement for the period from 30th July 2008 to 29th July 2009 in accordance with Section 4(1) of the Organic Law on the Duties and Responsibilities of Leadership.

 THEREBY being guilty of misconduct in office pursuant to Section 4 (6) (a) of the OLDRL.

15. This is the final Allegation on which the Leader pleaded guilty to. The facts of this case show that, from 30th July 2008 to 14th October 2009 the Leader failed without reasonable excuse to give to the Ombudsman Commission his annual statement for the period from 30th July 2008 to 29th July 2009 in accordance with Section 4(1) of the Organic Law on the Duties and Responsibilities of Leadership.

16. Where a person to whom, the Leadership Code and the Organic Law on Duties and Responsibilities apply, fails to comply with the requirement to furnish annual statements or sundries on minor items or fails to rectify discrepancies between statements earlier furnished to the Ombudsman Commission is guilty of misconduct in office pursuant to Section 4 (6) of the OLDRL.

ALLEGATIONS 16:

 THAT between March 2003 and January 2006 the Leader failed to carry out the obligations imposed by Section 27(2) of the Constitution.
 
 By having an adulterous affair with a woman when he was himself married, the Leader created disharmony within a family unit, ending in a break up of that family unit.

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

17. This is the final Allegation on the Reference on which the Leader was found guilty on 2 – 1. Two members of this Tribunal found the Leader guilty. The evidence adduced by witnesses for the prosecution and the Leader say that between March 2003 and January 2006 the Leader failed to carry out the obligations imposed by Section 27(2) of the Constitution which requires that a Leader must be a person to whom this Organic Law applies and has a duty to conduct himself in such a way, both in his public or official life and his private life, and in his associations with other people.

18. The evidence in support of this Allegation established that by having an adulterous affair with a woman when he was himself married, the Leader created disharmony within a family unit, ending in a break up of the marriage between Shirley and Tamarua.

ADDRESSES ON PENALTY

19. We had the privilege of hearing counsels on their addresses on the penalty. Mr. Paraka – counsel for the Leader spoke on his 38 pages written submission. On Category One Allegations, numbering from Allegations 2 to 8, counsel submitted that, there was no serious culpability on the part of the Leader as the Leader pleaded guilty to and the other Allegations went by trial on which the Leader was not found guilty except for Allegation 16 for which, the Leader was found guilty.

20. Counsel argued that all Allegations which the Leader pleaded guilty to involved late filing of annual statements which breached s. 4(6) of the OLDRL. He further argued that these were not cases involving total failure or were not cases of false or misleading submission of annual statements which may border on dishonest intent would amount to serious culpability.

21. Counsel further submitted that, the Leader in the instant charges was initially charged with 16 Allegations. That these were reduced substantially because eight (8) charges were dismissed because the Leader was found not guilty and considering the "reduction in charges principle" the Tribunal should find that there is "no serious culpability". Mr. Paraka cited cases of Peter Peipul v Hon. Justice Sheehan & Others (2002) SC 706, Re: John Nilkare (2.7.1997) SC 536. Reference by the Public Prosecutor Re: Peter Ipatas MP, Governor of Enga Province (2006) N3078, Melchior Pep (2007) N3134, Grand Chief Sir Michael Somare Lt 1 of 2010 (14.3.2011) N4224 and other cases to support his submission on the issue of ''serious culpability", "totality of breach principle" and the "totality of circumstances principle".

22. On the charge of extra marital affair (Allegation 16), Mr. Paraka submitted that, in the past Tribunal decisions have been unanimous. He cited the case In The Matter of Grand Chief Sir Michael Somare, Reference LT NO. 1 of 2010 (15.3.2011) N4224 where the Tribunal split in their decision on penalty. Counsel said, on the instant inquiry, the decision on guilt on Allegation 16 was 2 to 1, would be open for review as it was not unanimous and the conviction was improper because the Leader was found guilty under s. 27(1) and (2) when the offending provision was s.27(2) of the Constitution.

23. The Public Prosecutor Mr. Kaluwin, counsel assisting the Tribunal submitted in reply that, the Leader had held various senior ministerial portfolios including Minister for Justice, Minister for Labour and Employment, Minister for Internal Security and the latest being the Minister for Inter Government Relations and District Development. Counsel submitted that the higher the responsibility is, the more serious the culpability becomes. He argued that the instant Allegations and the circumstances surrounding the Allegations are serious breaches of s, 4 of the OLDRL and s.27(5) of the Constitution.

24. Mr. Kaluwin further submitted on the issue of serious culpability saying when considering the penalty the Tribunal should consider misconduct in office in the context of the overall circumstances of all the charges. He referred to the case of the Application by Gabriel Dusava (27.10.98) SC 581 where the Supreme Court said, the purpose of the Leadership Code is directed to "removing a person who is considered after due inquiry to be unworthy of continuing in office". 

25. On the issue of appropriate penalty, counsel argued that deterrence must be considered in cases where leaders who hold high public positions to show disapproval of the type of conduct glaringly exhibited by non compliance with provisions of the Leadership Code and the Organic Law. He cited cases such as Jim Kas (27.9.??), Application by John Mua Nilkare (15.4.97) SC 536, Michael Nali (N0.2) to substantiate the proposition that, in cases where Leaders are found guilty, the Tribunal "starts with the premise that it shall recommend dismissal from office unless pursuant to s. 28 (1A), (a) and (b), it found that there was not serious culpability and that public policy and public good do not require dismissal," (See, Peter Peipul -v- Hon. Justice Sheehan, Orim Karapo & Iova Geita & Ors SCM 2 of 2002 (24.5.2002).

26. Counsel submitted that, coupled with non compliance with the s.4 of the OLDRL, the Leader's conduct in the extra marital affair with Shirley involved "serious culpability" and that the public policy and public good require that the Leader be dismissed from office as the Member of Parliament.

RELEVANT LAW

27. For purposes of understanding appropriate legislations on which the Leader breached, we quote the relevant provisions of the Constitution and the Organic Law on Duties and Responsibilities of Leadership. First on the Leadership Code, s.27 of the Constitution states that person who hold public office have a duty to conduct their lives both publicly and privately in such a way that would not allow their public or official integrity to be called into question. Section 27 of the Constitution states:

 "27. Responsibilities of Office.
 
 (1) A person to whom this Division applies has a duty to conduct himself in such a way both in his public or official life and his private life, and in his associations with other persons as not –

 (a) A person himself in a position in which he has or could have a conflict of interests or might be compromised when discharging his public or official duties; or
 
 (b) to demean his office or position; or

 (c) to allow his public or official integrity, or his personal integrity to be called into question; or

 (d) to endanger or diminish respect for and confidence in the integrity of government in Papua New Guinea.

 (2) In particular, a person to whom this Division applies shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by Subsection (1).

 (3) It is the further duty of a person to whom this Division applies –
 
 (a) to ensure, as far as is within his lawful power, that his spouse and children and any other persons for whom he is responsible (whether morally, legally or by usage), including nominees, trustees and agents, do not conduct themselves in a way that might be expected to give rise to doubt in the public mind as to his complying with his duties under this section; and
 
 (b) if necessary, to publicly disassociate himself from any activity or enterprise of any of his associates, or of a person referred to in paragraph (a), that might be expected to give rise to such a doubt.

(4) The Ombudsman Commission or other authority prescribed for the purpose under Section 28 (further provisions) may subject to this Division and to any Organic Law made for the purposes of this Division, give directions, either generally or in a particular case, to ensure the attainment of the objects of this section.

 (5) A person to whom this Division applies who –
 
 (a) is convicted of an offence in respect of his office or position or in relation to the performance of his functions or duties; or

 (b) fails to comply with a direction under Subsection (4) or otherwise fails to carry out the obligations imposed by Subsection (1), (2) and (3)

 is guilty of misconduct in office.

28. On Allegations of failure to give annual Statements to the Ombudsman Commission, PART II of the Organic Law on Duties and Responsibilities of Leadership says that a Leader to whom that law applies must in every period of twelve (12) months give to the Ombudsman Commission annual statements of his assets, annual income, personal or real property together with that of his spouse and his children under voting age. Section 4 of the OLDRL states:

 'PART II – RESPONSIBILITIES OF LEADERSHIP

 4. Statement of income, etc.

 (1) A person to whom this Law applies shall;
 
 (a) within three months after Independence Day; or

 (b) within three months after becoming such a person.

 as the case may be, and at least once in every period of 12 months while he remains such a person, give to the Ombudsman Commission a statement to the best of his knowledge setting out, in respect separately of himself and his spouse and any of his children under voting age –

 (a) the total assets including money, personal property and real property in the possession or under the control of each of them; and

 (b) the total income received by each of them during the period of which the statement relates and the source of each of those incomes; and

 (c) the business connexions of each of them (including any business connexions with unincorporated profit – seeking organizations); and

 (d) the directorships or other offices in a corporation or an unincorporated profit-seeking organization held by each of them; and

 (e) all business transactions entered into by each of them (including transactions with unincorporated profit- seeking organizations) during the period of which the statement relates; and

 (f) all gifts received by them (other than gifts received in the normal course of events from close relatives) during the period to which the statement relates and the value of those gifts; and
 
 (g) the assets acquired by each of them during the period to which the statement relates; and

 (h) the liabilities incurred or discharged by each of them during the period to which the statement relates, and the amount of each such liability.

 (2) The period to which a statement (subsection (1) shall relate is-
 
 (a) in the case of the first statement the proceeding 12 months; and

 (b) in any other case – the period since the last statement was given.

 (3) In the case of sundries and minor items it is sufficient if the declaration shows their general natures and approximate amounts or values.

 (4) The Ombudsman Commission or other authority may, by notice in writing to a person to whom this Law applies require him to explain or give details or further details of any matters relating to the statement including; -

 (a) sundries and minor items shown in accordance with Subsection (3); and

 (b) omissions or apparent omissions; and

 (c) discrepancies in the statement or between it and other statements or other information available to the Ombudsman Commission or other authority.

 (5) Statements and information given to the Ombudsman Commission or other authority under this section shall not be revealed to any person except –

 (a) in the course of the duties of the Ombudsman Commission; or

 (b) for the purpose of proceedings or possible proceedings under Section 27; or

 (c) under an order of a court of competent jurisdiction.

 (6) A person to whom this Law applies who –

(a) fails without reasonable excuse (the burden of proof of which is upon him) to give to the Ombudsman Commission or other authority a statement in accordance with Subsection (1), or to give any explanation or details required under Subsection (4); or

 (b) knowingly, recklessly or negligently gives such a statement or explanation, or any such details, that is or are false, misleading or incomplete in a material particular;

 is guilty of misconduct in office."

29. As we have alluded to earlier, the Leader is guilty of misconduct in office on those Allegations he pleaded guilty to together with the one he was found guilty on. The task of this Tribunal now is to determine the appropriate penalty or penalties to be imposed and recommend to the appropriate authority. Before we do that, we must decide the issue of whether there was "serious culpability" on the part of the Leader or not and whether or not "the public policy and public good" require that the Leader should be dismissed.

30. We consider the course the Leader took in not complying with the law and decide on his degree of culpability on the part of the Leader and decide whether as a matter of national interest or public policy and public good such misconduct in office warrants dismissal or alternative penalty under s.28(1)(i)(ii) or (1A)(a)(b) of the Constitution. These provisions state:

 "(g) shall establish independent tribunals that –

 (i) shall investigate and determine any cases of alleged or suspected misconduct in office referred to them in accordance with the Organic Law; and

 (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 ...

31. The later part of the same Section provides for alternative penalties. It states:

 "(1A) An Organic Law may provide that where the independent tribunal referred to in Subsection (1) (g) finds that;-
 
 (a) there was no serous 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."

32. The Leadership Code (Alternative Penalty) Act provides for alternative penalties that may be imposed on Leaders for breaches of the Leadership Code, Section 2 of the Act states:

 "2. Alternative penalties;

 The penalties that may be recommended and imposed under and for the purposes 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 III.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 on the decision of the tribunal or;

 (c) he 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(2) 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 of demotion – he be demoted.

33. The Tribunal on this enquiry has found that, the Leader without reasonable excuse and explanation failed to furnish to the Ombudsman Commission his annual statements as they fell due. At this stage, the Tribunal is obliged to consider and impose a penalty on the Leader.

34. The process of determination of any penalty begins with s. 27(5) of the Organic Law on Duties and Responsibilities of Leadership. It provides that if the Leadership Tribunal finds a Leader guilty of misconduct in office, it can either recommend to the appropriate authority that the Leader be dismissed from the office he holds or recommend other penalty or penalties.

35. However, s.28(1A) of the Constitution provides that an Organic Law may provide that where a Tribunal finds that there was no serious culpability on that part of a Leader who has been found guilty of misconduct in office and public good and public policy do not require dismissal, it may recommend to the appropriate authority that some other penalty provided for by law may be imposed.

Appropriate Penalty

36. It is established law that when a Leadership Tribunal determines to impose an alternative penalty under the Leadership Code (Alternative Penalties) Act it must decide if there was serious culpability on the person found guilty of misconduct, then it must determine whether public policy and public good do not require dismissal: Major General Jerry Singirok -v- Hon. Justice Jalina, Cosmos Bidar & Regina Sagu and The State (21.3.2000) N2068 see also Peter Peipul -v- Hon. Justice Sheehan, Orim Karapo & Iova Geita & Ors SCM 2 of 2002 decision dated 24.5.2002.

37. In John Nilkare -v- The Tribunal (1997) SC 536 the Supreme Court said the word "culpability" "involves serious blame, an act involving wrongful intention or negligence, an act deserving censure," Culpability relates to the degree of blame worthiness on the part of an offender, in this case the Leader.

38. Before, any penalty can be considered, it is necessary to fix the culpability or the blameworthiness of the leader. In doing this, the Tribunal is entitled to take into account factors favourable to the Leader and factors which may aggravate the misconduct and behaviour of the Leaders.

39. The penalty regime for misconduct in office in the Leadership Code and the Organic Law ranges from reprimand to the ultimate penalty of dismissal from office. There are options of penalties provided for under s.28(1A) of the Constitution and s.2 of the Leadership Code (Alternative Penalty) Act. Whatever penalty the Tribunal imposes will depend on the circumstances of each case: Peter Ipu Peipul v Hon. Justice Sheehan & Ors (24.5.2002) SC 706, see also Re: Hon. Peter Ipatas MP Governor, Enga Province (4.8.2006).

40. All Allegations to which the Leader pleaded guilty are similar in nature but they cover different periods of time. We have noted from the facts that the Leader's case did not involve a total failure to lodge his annual statements as was in the case of Re: Timothy Bonga (30.4.96) where he did not lodge his annual statement for five consecutive years.

41. On the issue of "public policy and public good", we consider the fact that, the Leader is an elected representative of his people. There is no interpretation of the phrase "public policy and public good." The legislative scheme both in the Constitution and Organic Law nor any other legislation clarifies the above phrase.

42. Perhaps we can refer to the Chapter 3 of the final Report of the Constitutional Planning Committee which is devoted to the Leadership Code and which in our view highlights on the qualities that a Leader should have, Paragraph 7 of Chapter 3 of that report states:

"The members of the National Parliament are the elected representatives of all people of Papua New Guinea. They have been given their high position to represent the interest of their people and not for their own special interests. What applies to ordinary members of parliament is even more applicable to those who hold ministerial office in the nation state. The Ministers of the nation hold high office and wide powers so that they may be better equipped to serve the people of their nation."
 
43. The people of Kikori gave the Leader the mandate to be their representative in the National Parliament. We note here that, campaigning for 2012 general election has commenced. Whatever penalties imposed on the Leader will affect him and the people in his Electorate and Papua New Guinea as a whole in the Leader's capacity as a Member of the National Executive Council and Minister.

44. Out of the 16 Allegations in the Reference, the Leader pleaded guilty to seven (7) (Allegations 2 to 8) while he denied nine (9). The inquiry went into trial and he was found guilty on Allegation 16 by majority 2 to 1. He has been found not guilty on Allegation 1 and 9 to 15. We consider that pleading guilty to those charges saved the prosecution time and expenses and curtailed the time taken to hold the inquiry.

45. We share the same view expressed by the Tribunal in the Reference Re: Honourable Peter Ipatas MP & Governor of Enga Province (4.8.06) that whether, or not a conduct is serious is "a question of fact to be determined from the overall circumstances of the case."

46. We had the benefit of reading character references in affidavits filed by the Leader himself and the following prominent people:

1. Hon. Don Pomb Polye MP the current Minister for Treasury and Parliamentary Leader for T.H.E. Party.

2. Mr. Chris Haiveta, former Governor of Gulf Province now Acting Secretary to the National Executive Council.

3. Hon. Charles Maiu, President of Ihu Local Level Government, Kikori Electorate. Attached to his affidavits is annexure "A" containing photos of development projects initiated by the Leader:

 (a) MV Ihu & MV Baimur

 (b) In appendix 3 are photos of a double storey – 4 classrooms and two teachers' house.

(c) Appendix 4, a 20 bed wards of Orokolo Health Centre run by United Church and a staff house.

 (d) Appendix 5, a 40 bedroom dormitory at Oru Top-Up High School with a staff house.

 (e) Appendix 6, a double classroom at Arehave-Harevavo Community School and a staff house.

 (f) Appendix 7, photos of an Aid Post building at Muro Upper  Popo Ihu LLG and a staff house and;

 (g) Appendix 7a photo of a PMV truck for Akapiru village bought from the Leader's DSIP funds.

4. Hon. Jonah Kairi, President of Baimuru Local Level Government, MPA Kikori Electorate. He also annexed photos of Aid Post buildings, staff houses, a photo of the radio room of MV Baimuru, photos of rubber nurseries at Upilima and copies of the Lucas Sawmill use to cut timber for various development projects in the Kikori Electorate.

5. Hon. Nono Sumboi, MPA President of East Kikori Locoal Level Government, Gulf Provinice. He too has annexed copies of Aid Post buildings at Ero and Kivaumai Sub-Health Centres and staff houses, a timber nursery at Terendau village, East Kikori and photos of two boats MVs MAEABI & POIRABI.

6. Hon. Wilson Baidu, MPA President of West Kikori Local Level Government. He attaches to his affidavit photos of three boats, a PMV truck, an Aid Post building and a staff house copies of rubber nursery plants.

47. All deponents of those affidavits have spoken highly of the Leader for the various development projects in each Local Level Government in the Kikori Electorate. All those persons contacted call for leniency on any penalties that the Tribunal will recommend.

48. We note here that even with such achievements, where there is serious culpability, leniency should not be considered because Leaders hold high offices and they must ensure that, they do not place themselves into positions where they can be seen to demean their office or not to allow their public or official integrity to be called into question.

49. From the statutory scheme on the penalty or penalties for misconduct in office by Leaders, under s., 27(5) of the Organic Law on Duties and Responsibilities of Leadership provides that a Leadership Tribunal finds a Leader guilty of misconduct in office, it shall recommend to the appropriate authority that the Leader in question be dismissed from office unless alternative penalties may be imposed having regard to the provinces of s. 28 (1(A) of the Constitution.

50. We note the terms of s 2 of the Leadership Code (Alternative Penalties) Act sets out in detail those alternative penalties as a fine up to K1,000.00, a recognizance, suspension, reprimand, salary reduction or demotion.

51. In our view, it would be erroneous to think, that this Tribunal has a free discretion as to when it should impose any of those alternative penalties, because s,28(1A) of the Constitution provides that alternative penalties may only be imposed when there is no serious culpability on the part of the person found guilty of misconduct in office and where public policy and public good do not warrant dismissal: In the Matter of the Reference by the Public Prosecutor and Hon. Edward Ramu Diro CBE, OStj, MP Unnumbered of 21st September 1991.

52. So in the instant case, we ask two questions. First, can it be said that there is no serious culpability on the part of the Leader? Secondly, does the public policy and public good not warrant dismissal? If this Tribunal decides against the Leader on the two questions then obviously we would have no alternative but to recommend dismissal: Re James Eki Mopio (9.12.81), see also In the Matter of Reference by the Public Prosecutor and in the Matter of Jim Kas (27.9.00) (Unnumbered judgement).

53. Having considered counsel's submissions and address on penalty and the appropriate legislations our final analysis for and against the Leader, we are of the view that there are no serious culpability or blameworthiness on the part of the Leader and the public policy and public good does not require dismissal.

54. We consider that a penalty of a fine on each count as provided for under s.2 of the Leadership Code (Alternative Penalties) Act is appropriate. Applying the "totality of the circumstances" principle and the "totality of breach principle" approach as was in Peter Ipu Peipul v Hon. Justice Sheehan, Orim Karapo and Iova Geita (24.5.2002) SMC OF 2002, Re: Peter Ipatas, MP (2006) N3078, Re: Dr. Sir Puka Temu CMG MP (24.8.2006) N3099 we recommend the following penalties:

 Allegation 2: Fine of K500.00.
 
 Allegation 3: Fine of K500.00.

 Allegation 4: Fine of K500.00.

 Allegation 5: Fine of K500.00.

 Allegation 6: Fine of K500.00.

 Allegation 7: Fine of K500.00.

 Allegation 8: Fine of K500.00.

55. On Allegation 16, we are of the view that, the Leader himself cannot be blamed. There was evidence before the Tribunal that when Shirley former husband Kwalimu Tamarua was in prison in 2002 for misappropriation of funds, Shirley went around with a man from the Autonomous Region of Bougainville.

56. She conceived and bore a child from that man. There was evidence that when Tamarua found this out after return from prison, he started to mistreat Shirley. In our view this reduces the culpability on behalf of the Leader.

57. Applying the principle in Re: Hon. Michael Nali, MP (2003) N2399, we consider the maximum fine be appropriate for Allegation 16.

 Allegation 16: Fine of K1,000.00.

 Total of K4,500.00.

58. The total amount to be paid by the Leader is K4, 500.00. The fine shall be paid into the National Court Registry Office within 7 days from today's date.

Conclusion:

59. Pursuant to s.27(6) of the Organic Law on duties and Responsibilities of Leadership, a covering letter and copy of this decision shall be sent to the Speaker for presentation to the National Parliament and the National Executive Council.

DATED THIS 6TH DAY OF JUNE 2012

__________________________________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the Leader