N6233 (LT)

PAPUA NEW GUINEA

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

AND

IN THE MATTER OF THE HONOURABLE BOKA KONDRA  MP MEMBER FOR NORTH-FLY OPEN AND MEMBER OF WESTERN PROVINCIAL ASSEMBLY (N0.2).

REFERENCE NUMBER LT.N0.3 OF 2014

BEFORE:

HONOURALE JUSTICE SALATIEL LENALIA –Chairman-
HIS WORSHIP MR. IGNATIUS KUREI – Senior Magistrate-Member
HER WORSHIP MS. ROSIE JOHNSON – Senior Magistrate-Member

Waigani

2014: 27th 30th October,
2015: 26th January,
18th – 20th, 23rd – 27th February,
27th April, 27th & 29th May.

CONSTITUTIONAL LAW – Leadership code – Misconduct in office – Allowing "integrity" of the Leader to be called into question – Diminishing respect for "integrity" of the government – Misappropriation and diversion of public funds originally allocated to the North-Fly District Treasury to payments an electoral office space when specific allocation had been made into the Leader's salary – Procurement processes was contrary to the Public Finance (Management) Act.

CONSTITUTIONAL LAW – Leadership Code – Misconduct in office – Particular offences – Using office for personal benefit – No request made for application of funds – Leadership Code and Organic Law of Duties and Responsibilities of Leadership protects from forbidden acts tendering to corruption.

LEADERSHIP CODE – Allowing integrity to be called into question by application of public money for personal benefit and that of his associates – Intentional application of public monies forming part of any funds under the control of Papua New Guinea Government to any purpose to which it cannot be lawfully applied – Section 13(1)(a)(b) Organic Law on Duties and Responsibilities of Leadership. 

Cases cited:

Gerard Sigulogo [1988-89] PNGLR 384
Peter Peipul-v-Hon Justice Sheehan, Orim Karapo & Iova Geita & Ors SCM 2 of 2002 (24.5.2002).
Application by Gabriel Dusava (27.10.98) SC 581
Application by John Mua Nilkare (15.4.97) SC536
Hon. Andrew Kumbakor, Member for Nuku Open Electorate (8.5.2003) N2362
Hon. Fidelis Semoso MP, Member for Bougainville Regional (24.7.12) Ref. No.1 of 2012
Hon. Michael Nali MP, N2378 (2003) & N2398
Hon. Ronny Bruce Knight-MP Member for Manus Open (1.5.2015) (Ref. No.2 of 2014 (No.2) 
In The Matter of Leo Robert Morgan [1978] PNGLR 460 
In the matter of Reference by the Public Prosecutor and in the matter of 
Reference No.2 of 1982, Reference by the Public Prosecutor [1992] PNGLR 336
Public Prosecutor and The Honourable Anderson Agiru MP (18.1.02)
Re Honorable Anderson Agiru MP
Re Jerry Singirok (21.3.2000) N2068
Re JohnNilkare [1998] PNGLR 472
Re Josep Auna [1980] PNGLR 500 
Re Michael Somare (2011) N4224
Ref by the Public Prosecutor and Hon. Bernard Hagoria (3.9.2003) N2525
Reference by the Public Prosecutor and Hon, Dr Puka Temu MP N3099
Reference by Public Prosecutor and Hon. John Nilkare MP (1996) 2nd July 1996
Reference by the Public Prosecutor and the Hon. Peter Ipatas (4.8.06).
Ref by the Public Prosecutor and Hon. Peter Ipatas (4.08.06) N3078
Ref by the Public Prosecutor and Hon. Michael Nali MP (2003) N2399
SC Reference No.2 of 1992, Ref by the Public Prosecutor [1992] PNGLR 336

Counsel:

Mr. P. Kaluwin, Counsel Assisting the Tribunal 
Mr. I. Molloy and Mr. Aseki, Counsel for the Leader 

29th May, 2015

1. 	LENALIA J - Chairman: The Leader on this Reference, Hon. Boka Kondra, MP Member for North Fly Open Electorate and Member of Western Province Provincial Assembly was elected as a Member of Parliament on 27th July 2007. He was re-elected on 27th July in 2012 General Elections until he was referred to this tribunal on 20th November 2014. On 27th April this year, the tribunal found him guilty last month on six serious allegations on the Reference one of which by a majority decision. 

2.	The tribunal has completed its task pursuant to s.27 (4) of the Organic Law on Duties and Responsibilities of Leadership (OLDRL). It completed due inquiry into the matter referred to it by the Chief Justice. For purposes of understanding appropriate legislations on which the Leader breached, I quote the relevant provisions of the Leadership Code and the OLDRL. 

3. First the Leadership Code, s.27 of the Constitution states that a person who holds a public office has a duty to conduct his or her life both publicly and privately in such a way that ought not to allow their public, official or private life called into question. The above provision 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) to place 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 Subsections (1), (2) and (3), is guilty of misconduct in office.

4.	The next provision is s.28 of the Constitution. It states:

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

(a)	may give to the Ombudsman Commission or some other authority any powers that are necessary or convenient for attaining the objects of this Division and of the Organic Law; and

(b)	 shall make provision for disclosure to the Ombudsman Commission or some other authority of the person and business incomes and financial affairs of persons to whom this Division applies, and of their families and associates, and in particular of interests in contracts with governmental bodies and of directorships and similar offices held by them (including powers to nominate directors, trustees or agents, or similar officers); or

(c)	shall empower the Ombudsman Commission or some other authority to require a person to whom this Division applies to dispose of, or place under the control of the public trustee, any assets or income where this seems to be desirable for attaining the objects of this Division; and

(d)	may prescribe specific acts that constitute misconduct in office; and

(e)	 may create offences (including offences by persons to whom this Division applies and offences by other persons; and 

(f)	shall provide for the investigation by the Ombudsman Commission or some other authority of cases of alleged or suspected misconduct in office, and confer on the Commission or authority any powers that are necessary or convenient for that purpose; and

(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

(h)	may make any other provision that is necessary or convenient for attaining the objects of this Division. 

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

(a) there was no serious culpability on the part of the 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. (Added by Constitutional Amendment No.4 – Leadership Code)." 

5.	The three charges of misappropriation of Papua New Guinea funds were pleaded pursuant to s.13 of OLDRL. This provision states: 

"13. Misappropriation of funds of Papua New Guinea.

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

(a)	 intentionally applies any money forming part of any fund under the control of Papua New Guinea to any purpose to which it cannot be lawfully applied; or

(b)	intentionally agrees to any such application of any such moneys, is guilty of misconduct in office."

6.	In like manner, s.27 (5) of the OLDRL says that, where a leader had been found guilty of misconduct in office, it must make recommendation to either dismiss the person or recommend other penalties pursuant to s.28 (1A) of the Constitution. The earlier provision states:

(5) If the tribunal finds that a person to whom this 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 an Act of the Parliament be imposed." 

7.	In relation to the first count of misapplication of monies under the control of PNG Government, there was ample evidence which proved that, the Leader misapplied a total amount of K85, 276.00 for purposes of renting an office space in Kiunga, North-Fly District belonging to his associate Kaspar Martinus. The said Kaspar Martinus was then employed by the leader as Chief Executive officer in his office in Kiunga and shareholder of the company Mini Fly Bakery. Evidence established that the leader was already being paid through his salary an amount of K1, 800.00 per fortnight for rental of office space and employment of electoral staff. To understand the charges laid for the above amount, I restate all allegations and brief coverage of evidence on each allegation. Allegations 1 & 2 read as follows: 

ALLEGATION 1:

THAT between December 2008 and December 2009, the Leader intentionally applied money forming part of a fund under the control of Papua New Guinea, namely the District Services Improvement Program (DSIP) and the District Support Grants to purposes for which it was not lawful;

IN THAT: The Leader used a total of K85, 276.00 from the District Services Improvement Program (DSIP) Funds and District Support Grant (DSG) held in the North-Fly District Treasury Operating Account to pay for the office rentals for the North-Fly Open Electorate in the North Fly District when he was already specifically allocated K38, 623.00 per annum payable over 26 pay periods (fortnightly salary) to pay for:

(a)	Employment of electoral staff; 
(b)	Electoral travel;
(c)	Air travel between Port Moresby and the Member's electorate;
(d)	Electoral duty; 
(e)	Electoral office rental.

This sum is not subject to an acquittal. 

THEREBY being guilty of misconduct in office under Section 13 (a) of the Organic Law on the Duties and Responsibilities of Leadership.

ALLEGATION 2:

THAT between December 2008 and December 2009, 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 association with other persons in such a way that he: 

(a)	Demeaned his office as a member of the Parliament for North-Fly Open and Member of the Western Provincial Assembly; and

(b)	 Allowed his official and personal integrity to be call into question;

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

BY using his office for personal gain;

IN THAT, the Leader used a total of K85, 276.00 from the District Services Improvement Program (DSIP) Funds and the District Support Grant (DSG) held in the North-Fly District Treasury Operating Account to pay for the office rentals for the North-Fly Open Electorate, the North-Fly District was already specifically allocated K38, 623.00 per annum payable over 26 pay periods (fortnightly salary) to pay for:

(a)	 Employment of electoral staff;
(b)	 Electoral travel;
(c)	 Air travel between Port Moresby and the Member's electorate;
(d)	 Electoral duty;
(e)	 Electoral office rental.

This sum is not subject to an acquittal,

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

8. The evidence against the leader on Allegation 1 tendered through witnesses show that three sums of monies were misapplied by the leader. On the first amount of K85, 276.00, the evidence on trial revealed that, between 2008 and 2009, the leader applied this sum of money for purposes of employment of electoral staff. Some of that money was used for electoral travels or trips, by air travel from the member's electorate to Port Moresby and back to his electorate. He used some of that money to pay for travelling on electoral duties and rented an office space at Kiunga town. 

9. These sums of money were drawn from the District Services Improvement Program (DSIP) and the District Support Grant funds. These were funds held in the North-Fly District Treasury Operating Account. Oral evidence by Mr. Ronald Manise Dmonai, the then District Administrator for North-Fly District shows that the Leader gave directions to him to make payments to Fly Mini Bakery and Ambiwid Holdings Limited for rental payments for the years, 2008, 2009 and part of 2010. 

10. The leader received electoral allowances of various sums in 2009 and part of 2010, he did not use any of these monies for renting the office space Mini Fly Bakery and Ambiwib Holdings Limited. An amount of K76, 500.00 was spent from the public monies to be used to pay for his electoral office rentals and renovations. According to the evidence of Mr. Richard Pagen in his affidavit, and that of Mr. Dmonai, this is contrary to the Public Finance Management Act. For further highlight on the evidence on amounts spent for renting of office space, refer to the following documents of the S/Rs:

D3 page 33 S/Rs letter from OC of 18.3.10 to Prov. Administrator-Western Province.
3D, Member's salary S/Rs page 90 for 2008, 2009 & 2010.
3E, Leader's pay-slip S/Rs page 93.
D13, letter from OC of 20.8.10 to National Parliament on leader's salary & emoluments S/Rs page 170.
D26, letter from OC of 29.8.11to National Parliament on leader's matters, S/Rs page 424.
D24 "KM1" page 402 S/Rs Stat Dec by Kaspar Martins of 26.2.11.
Attachments-A a letter from OC to Martinus on leadership matters S/Rs p 	405),
-B "KM2" reply by Martinus to OC of 26.2.11 S/Rs 109
-C "KM3" Cheque No.012964 to Ambiwid Holding of 26.2.11to for  amount of K1, 238.17 for rental of office space.
-D "KM4" copy of BSP Cheque No.12859 paid to Ambiwid  Holdings for maintenance of vehicle and reimbursement of  personal monies and office rental bills S/Rs p 413 amounting to  K24, 000.00. 
 -E "KM5"Lease Contract for Sect 10 Lot 19 for the property in  Kiunga, see S/Rs p 415. 
-The total amount alleged in Allegation 1 was K85, 276.00. 

11. Allegations 3 and 4 read:

ALLEGATION 3:

THAT between 2008 and 2010, the Leader intentionally applied a sum of K134, 966.62 forming part of a fund under the control of Papua New Guinea to purposes for which it was not lawful;

IN THAT whilst receiving housing allowance of K1, 800.00 in his fortnightly salary, the Leader allowed the use of K134,966.62 from the District Improvement Program (DSIP) and the District Support Grant (DSG) held in the North-Fly District Operating Account for rental payments for accommodation for himself and his family in Port Moresby as outlined below:-

For the years 2008, 2009 and 2010 the Leader was being paid housing allowances equivalent to that of a Governor when he received in:

a)	2008, a sum of K46,800.00;
b)	2009, a sum of K62,600.00 and in
c)	2010, a sum of K47,814.00 (up to 22nd September 2010)

THEREBY being guilty of misconduct in office under Section 13(a) of  the Organic Law on the Duties and Responsibilities of Leadership.

ALLEGATION 4:

THAT between 2008 and 2010, 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 association with other persons in such a way that he:

(a)	 Demeaned his office as a member of the Parliament for North-Fly Open and member of the Western Provincial Assembly; and

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

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

BY using his office for personal gain;

 IN THAT whilst receiving housing allowances of K1, 800.00 in his fortnightly salary, the Leader allowed the use of K134, 966.62 from the District Services Improvement Program (DSIP) and the District Support Grant (DSG) held in the North-Fly District Operating Account for rental payments for accommodation for himself and his family in Port Moresby.

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

12. Evidence in relation to the second misappropriation charge (Allegation 3) for rental payments to properties in Port Moresby, the tribunal found that the leader misapplied an amount of K134, 966.62 from the public money under the control of the PNG Government held at the North Fly District Treasury office. 

13. The leader denied knowing or signing any rental agreements. The properties the leader rented were belonging to an entity referred to as Freelance Ltd and the other company Palimb Investment Ltd. Mr. Jack Naiyep the managing director of these two entities revealed in his evidence that he owns the two companies and said, the leader signed the rental agreement contracts to rent properties in Tokarara and Boroko. 

14. The tribunal found that the Leader misapplied a total of K134, 966.62 between the years 2008 and 2010 for purposes of renting accommodation in Port Moresby for him and his family and his supporters. It proved is alleged that, between the above periods, the leader was already receiving a fortnightly rental payment in his salary of K1, 800.00, the leader being the Chairman of the North-Fly District Services Improvement Program (DSIP) and the District Support Grant (DSG), he chaired meetings which approved himself payments for his rental accommodation for the year 2008 a sum of K46, 800.00. 

15. For the years 2009 and 2010, he was paid sums of K62, 600.00 and K48, 814.00 for 2010 up until 22nd September 2010. The above sums were withdrawn from the (DSIP) and (DSG) held in the North-Fly District Treasury Operating Account. I restate what I said in the findings the following documents show various transactions done for payments of rental payments: 

-Letter of demand dated 16.7.09 from Ambiwid Holdings Ltd to the Leader for outstanding rental payments from January to June 2009 – K20, 000.00, see page 109 S/Rs. 
-Letter from Freelance Ltd to the leader dated 1.11.09 for rental payment of K26, 083.33 for November 2009. See p 115 of S/Rs.
-BSP cheque No.184 dated 24.9.10 for the sum of K50, 049.98 payable to Palimb Investments Ltd, see p 177 S/Rs. 
-BSP bank cheque No.199 dated 8.12.10 for the sum of K47, 666.68 payable to Palimb Investments Ltd, see p 178 S/Rs.
-BSP bank cheque No. 237 for K12, 766.66 dated 16.3.11 paid to Palimb Investments Ltd, see p 184 S/Rs.
-BSP cheque No. 13198 for K85, 799.96 dated 8.3.2010 payable to Palimb Investments Ltd, see S/Rs p 185.
-Total amount involved in was more than K134, 966.62 the amount alleged in count 3. 
 
16. The total rental payments for accommodation in Moresby amounted to K134, 966.62. The following documents copies of Bank Cheques, General Expenses and Requisitions for expenditures are evidence of the amount alleged in Allegation 3 is that, for the years 2008, 2009 and 2010 the Leader was being paid housing allowances equivalent to that of a Governor when he received in:

a)	 2008, a sum of K46,800.00;
b)	 2009, a sum of K62,600.00 and in
c)	 2010, a sum of K47,814.00 (up to 22nd September 2010)

17. Again the tribunal found that the leader was guilty of double deeping by using Government monies to pay for accommodation when he was already being paid fortnightly rental payments. The next two allegations read: 

18.	The two final charges on this Reference read:

ALLEGATION 5:

THAT between 2008 and 2010 the Leader intentionally applied money forming part of a fund under the control of Papua New Guinea to purposes for which it was not lawful.

IN THAT the Leader misapplied a total of K18, 200.00 from the District Services Improvement Program (DSIP) funds and the District Support Grant (DSG) to service a personal outstanding debt incurred during the 2007 National Elections by hiring a motor vehicle from a company called Towi Smash Repairs outlined as follows:-

•	The leader incurred debts during his election campaign in 2007 and did not pay this debt for almost two (2) years,
•	He then allowed public funds from the DSIP and DSG to be used to pay off this personal debt,
•	The Leader use public funds from DSIP and DSG totaling K18,200.00 to settle his debt,
•	The Leader breached the DSG and DSIP guidelines by authorizing funds to be used outside these guidelines,

THEREBY being guilty of misconduct in office under Section 13(a) of the Organic Law on the Duties and Responsibilities of Leadership.

ALLEGATION 6:

THAT between 2008 to 2009 the Leader failed to carry out the obligations imposed on him by Section 27(1) of the Constitution;

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

(a)	 Demeaned his office as a member of the Parliament for North-Fly Open Electorate and member for the Western Provincial Assembly; and

(b)	Allowed his official integrity and his personal integrity to be called into question.

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

BY using his office for personal gain.

IN THAT the Leader misapplied a total of K18, 200.00 from the DSIP funds and DSG to service his outstanding 2007 National Election debt which came about as a result of hiring a motor vehicle from a company called Towi Smash Repairs during the 2007 National Election which are outlined as follows:-

•	The Leader incurred debts during his election campaign in 2007 and did not pay this debt for almost two (2) years;
•	He then allowed public finds from DSIP and DSG to be used to pay his personal debt;
•	The Leader used public funds from DSIP and DSG totaling K18, 200.00 to settle his outstanding debt;
•	The Leader breached the DSG and DSIP guidelines by authorizing funds to be used outside these guidelines.

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

19.	The final charge laid under s.13 (a) of the OLDRL involved an amount of K18, 200.00 was used by the leader to settle his personal outstanding debts on motor vehicle hired during his election campaigns prior to being elected into office as an MP, and Member for North-Fly Open Electorate and Member of Western Provincial Assembly. Evidence adduced showed that between 2008 and 2010, the leader intentionally misapplied a total of K18, 2000.00 to settle his personal outstanding debt since 2007 National General Election. That the above amount was paid to a company referred to as Towi Smash Repairs in Port Moresby. 

20.	 In a letter dated 9th February 2009 written by the managing director of TOWI Smash Repairs an invoice for vehicle hire was attached to it for an amount of K18, 200.00 for thirteen (13) days in July, & fifteen (15) days in August 2007. In that letter the manger expressed concern that, the amount had been outstanding for a long time and no payments had been made. (See documents M, (i) pages 102 and 103 of the SORs & Richard Pagen' Affidavit pages). Again to settle this debt, money was paid from the (DSIP) and (DSG) held in the North-Fly District Treasury Operating Account. The summary of Allegation 5 shows:

-Letter from manager of Towi Smash Repairs to North-Fly District Administrator date 9/02/09 requesting payment of K18, 200.00 for outstanding payment for hire vehicle, see p 102 & 103on S/Rs.
-Requisition for expenditure form for above amount dated 18.5.09, see p 106 on S/Rs.
-General Expense form dated 18.5.09 for K18, 200.00 paid to Towi Smash Repairs being for outstanding vehicle hire bill, see p 107 on S/Rs.
-Total amount involved K18, 200.00. 

21. Two of the witnesses working with the National Parliament Mr. Jack Bagita, currently the Executive Officer to the Salaries and Remuneration Commission working in the House of Parliament and Mr. Renagi Kila currently the Officer-in-Charge of Members of Parliament Emoluments Section, Parliamentary Services, National Parliament confirmed that the leader at that time and even now receives as part of his entitlements vehicle, accommodation and public utilities allowances. (See the leader's pay-slip at pages 90, 93 & 111 of the Statement of Reasons S/R). 

Addresses on Penalty

23. I have considered counsels' submissions on penalty. Mr. Molloy counsel representing the Leader submitted that, since the leader was found guilty of a series of charges, this tribunal should look at the totality of the findings of misconduct and determine what recommendation should be made in relation to appropriate penalty. Counsel submitted that, in determining the issue of any penalties, the tribunal should consider payments in relation to the money misappropriated, were made by the District Administrator as the leader was not directly involved. 

24. Counsel submitted that the tribunal is entitled to look beyond the actual misconduct at those factors subjective to the leader and consider his public record. Counsel referred to the case of Peipul v Justice Sheehan (2002) SC706 where the Supreme Court said that as on this case, the tribunal must give due weight to personal antecedents which may mitigate or aggravate the penalty. He addressed the issue of dismissal saying if the leader is given the maximum penalty; the people in his electorate will suffer without a representative. Part of his submission relates to humiliation caused to the leader by the media on the finding of guilty of the allegations. Counsel's submission is that, direct involvement of the others shows there was no serious culpability on the part of the Leader. Counsel asked the tribunal to consider an alternative penalty.

25. Mr. Kaluwin, counsel assisting the tribunal replied to the defence submission by saying that the three categories of allegations on which the leader was found guilty of concern misapplication of public monies and they involved serious culpability. He submitted that the Leadership Code and the OLDRL cast great responsibility on the leaders of this nation. Counsel quoted certain passages of Chapter 3 of the Final Constitutional Planning Committee. 

26. Counsel submitted that where the misconduct of a leader involves misappropriation of public money, it has elements of dishonesty and it involves corruption. Counsel referred to case he referred to saying, Leadership Tribunals have placed emphasis on corrupt conducts of leaders. Counsel referred to the case of Hon. Ronny Bruce Knight-MP Member for Manus Open (1.5.15) (No.2) Ref. No.2 of 2014 where this tribunal recommended the leader for dismissal. 

27. I read the character references filed by the leader through his lawyer. The one by the President of the Ningerum Local Level Government Hon. Kawuk Konmop speaks highly of the leader. Both the president and Reverend Joe Pandu of Assembly of God in Waigani say the leader is a God-fearing person. Pastor Kiwa Kwanekya of Christian Revival Crusade said the leader supports and participates in the church activities and he sees that people in their electorate should develop and be self-supporting. 

28. The president of UPNG Fly River Students Association made similar comments as he sees potential delivery of vital services to the people in their electorate by the leader. He is of the view that if the leader is dismissed, this will cause blockage of human resource in the North-Fly District. He again shifts the blame from the leader and says the leader should not be seriously penalized.

Vision of Constitutional Planning Committee

29. In Chapter 3 of the Final Constitutional Planning Committee's Report, the committee was of the view that the effect of the Leadership Code should not be more than mere directives, but it should be morally and legally binding on all leaders defined in Division 2 of the Leadership Code (see s.26 of Constitution) and should be firmly enforced. Section 27 of the Constitution talks about leaders not to demean their offices or positions and they must not allow their public or official integrity to be called into question. Leaders of our nation must not endanger or diminish respect and confidence in the integrity of the P. N. G Government. 

30. The C.P.C's vision is reflected in Ch. 3 of its Final Report and I wish to quote a number of paragraphs to give us an highlight. In paragraph 37, the committee said:

"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." 

31. Further down in paragraph 38 the committee said:

 "If a leader commits a breach of the Code he should automatically lose his office unless there are extenuating circumstances which justify a lesser penalty. A breach of the Code may also involve an offence under the Criminal Code or another law. For example, bribery is already an offence under the Criminal Code, and the Chief Minister is proposing to introduce legislation to make the necessary acceptance from a company or investor valued at more than a certain amount, a criminal offence…." 

32.	Further down in the same chapter at paragraph 43, it said something about misappropriation of public monies in the following terms:

"The misapplication of funds is another serious offence which is all too common at present not only in the government but in co-operatives and private enterprise as well. We see a need for our leaders to set an example to others, both inside and outside government service, in the proper use of government funds, and therefore recommend the inclusion of this rule in the Code."

33.	In paragraph 97, the C.P.C report, it recommended something on the effect of or result of breach of the Leadership Code where it said:

"As to the effect of a decisions by one of this tribunals that a leader has committed a breach of the Code, we recommend that the leader should automatically be deprived of his office unless the tribunal is satisfied that there are extenuating circumstances which justify the tribunal imposing an alternative penalty, such as imposing a fine of up to a specified maximum sum (provided for by law) demoting the leader (if he is a public officer) reprimanding him, placing him on a bond to be of good behavior for a certain period or such other punishment as may be laid down by law."

34. As the tribunal found, the manner and the process of getting the money to fund the leader's rented office in Kiunga amounting to K85, 276. On rental payments for properties in Moresby was K134, 996.62 and for hire vehicle during 2007 General Election an amount of K18, 200.00. Those were projects nominated by the leader himself and how the money was used was not proper and this amounted to serious culpability. I must say here that, the Leadership Code and the OLDRL impose great and high responsibilities on leaders and as such in my view the leaders must conduct themselves with dignity and honesty.

35.	The leaders of this nation must realize that they represent the people in their electorates and Papua New Guinea as a whole. Leaders ought to remember that once elected into parliament or those appointed to responsible positions in the Public Service in case of those who hold responsible positions like members of the Parliament or Constitutional Office holders as defined in s.26 of the Constitution their responsibility is great. 

36.	Those entrusted with the duty to care for other person's property such as the government funds as was in this case, such people become "stewards" and "custodians" of looking after somebody else's property and that somebody is none other the National Government. Parliamentarians and Public Servants are thus stewards of government funds as they have been vested with high responsibility to mange and administer such funds to the best interests of the people of this nation in accordance with the Public Finances (Management) Act 1995. Leaders therefore have a duty to conduct themselves in such a way, both in their public or official life and their private or personal life style their spouses' and children under voting age. 

37.	The term "steward" is defined in the Oxford Advanced Learner's Dictionary on its second meaning to mean, "a person employed to manage another person's property". Similarly, the word 'custodian' means, "a person who takes responsibility for taking care of something". On these cases, the Leader, the District Administrator and Treasurer for the North-Fly District were merely stewards of the funds which had been allocated to the Western Province Provincial Government by the National Government. Application of any money under the control of Papua New Guinea Government must be done in accordance with the Public Finance (Management) Act 1995. 

38.	The Supreme Court in Reference No.2 of 1982, Reference by the Public Prosecutor [1992] PNGLR 336 accepted the Public Prosecutor's submission and said that, the entire thrust and primary role of the Leadership Code is "to preserve the people of Papua New Guinea from misconduct by its leaders". On this case, the leader had a duty not to place himself in a position in which he could be seen to compromise his role as a leader when discharging his official duties and conduct of his private business and life. Whether a leader has committed a criminal offence or is being convicted under the Leadership Code and the OLDRL, such conviction, demeans the office he holds and endangers or diminishes respect for and confidence in the integrity of the Government of the day.

39.	Not only that the leader is a Member for North-Fly and Member of Western Provincial Assembly but he is also the Minister Culture Tourism and a Member of the National Executive Council a very high official responsibility the highest constitutional responsibility as defined by s.26 of the Constitution.

40.	In my view, the three charges of misapplication of monies upon which, the leader was found guilty do involved serious culpability. That being the case, I must consider misconduct in office in context of the overall circumstances of all the allegations on which the leader was found guilty. The Supreme Court said in the Application by Gabriel Dusava (27.10.98) SC 581 that, the purpose of the Leadership Code is directed to removing leaders who have been "considered after due inquiry to be unworthy of continuing in office."

41.	If a leader is found guilty of misconduct in office, deterrence must be considered to show disapproval of the type of conduct shown by non compliance with provisions of the Leadership Code and the Organic Law. Tribunal case law authorities on the issue of appropriate penalties say that where a leader is found guilty, the highest penalty of dismissal ought to be considered except in cases where, there are extenuating circumstances pursuant to s.28 (1A)(a) & (b) of the Leadership Code: Application by John Mua Nilkare (15.4.97) SC536, Hon. Michael Nali MP, N2378 (2003) & N2398. (See also Peter Peipul-v-Hon Justice Sheehan, Orim Karapo & Iova Geita & Ors SCM 2 of 2002 (24.5.2002).
Serious Culpability

42.	In order for the Tribunal to consider any appropriate penalty or penalties, it must ask itself, was there serious culpability on the part of the Leader Hon. Boka Kondar MP on the allegations that he has been found guilty on. If there was, does the public policy and public good require dismissal from the office? It is my view, that, there is no question that the Leader was culpable for what he did. Does such culpability sufficiently serious warranting dismissal from the public office he holds as required by s.28 (1A) (a) and (b) of the Constitution? The phrase "serious culpability" has been widely interpreted by various tribunals on consideration of what penalty or penalties ought to be imposed.

43.	In the Reference by Public Prosecutor and Hon. John Nilkare MP (1996) 2nd July 1996 described serious culpability as "It involves serious blame, an act involving wrongful intention or negligence, an act deserving censure". In Public Prosecutor and The Honourable Anderson Agiru MP (18.1.02) the tribunal said, in order for a tribunal to decide on an appropriate penalty the starting point is to fix the issue of culpability or the blameworthiness on the leader. (See also Reference by the Public Prosecutor and the Hon. Peter Ipatas (4.8.06). 

44. In essence, culpability relates to the degree of blameworthiness on the offender and in this inquiry on the part of the Leader. I am of the view that, the higher the responsibility is, the higher the degree of culpability and blameworthiness must be. Prior to imposing any penalty, this tribunal must fix the culpability or blameworthiness on the leader. On determining this issue, this tribunal is entitled to take into account factors which aggravate the Leader's case, and those which may be considered as extenuating circumstances in his favour. 

45.	On Leadership Tribunal cases, dismissal is the ultimate penalty. However, in some misconduct in office offences, the obvious result of dismissal would be apparent while some may not be that clear. It has been said that where an allegation of misconduct in office falls within the vicinity of a crime, then clearly, this may reflect very serious culpability which may warrant dismissal: Reference by the Public Prosecutor and In the Matter of Anderson Agiru (18.1.02), Reference by the Public Prosecutor and Hon. Michael Nali MP (2003) N2399, In the matter of Reference by the Public Prosecutor and in the matter of Gerard Sigulogo [1988-89] PNGLR 384.

"Public good" & "public policy"

46.	On the issue of "public policy and public good", it has been said, that if a leader is found guilty of misconduct in office, he or she must be penalized by either being recommended for dismissal under s.27 (5)(a) of the OLDRL or recommend for any other alternative penalty pursuant to s.28 (1A) of the Constitution. In the Supreme Court case of Peter Ipu Peipul-v-Sheehan (2002) SC 706, (see judgment of Amet, CJ (as he then was) said:

"I do believe the "public policy and public good" require that leaders who are found to have misconducted themselves in office be PENALISED. I do not believe, however that it is good policy to conclude that every such leader should automatically be expected to be dismissed from office as a matter of public policy. There are so many variables in the conduct that each one must be on its merits."

47.	I adopt the interpretation of the phrase "public policy" and "public good" given by the Tribunal in Reference by the Public Prosecutor and Hon. Michael Nali MP (2003) N2399 where it referred to a number of overseas case law authorities which give the interpretation of the above words. The phrase "public policy" may be interpreted to mean the ideas or practice which prevails in a community for the time being to ensure its welfare and where anything is done against such practice may be treated as against the public policy and public good.

48.	The Leader's action was contrary to public policy and public good and shows glaring disregard to the Public Finances (Management) Act 1995 when he himself knew that he had already been paid through his fortnightly salary for accommodation, public utilities and as we have found The Leader breached the DSG and DSIP guidelines by authorizing funds to be used outside these guidelines complete disregard to the management of public finance. We further found that, the leader went ahead to give directions to the use of the funds contrary to the "public policy" and "public good": Supreme Court Reference No.2 [1992] PNGLR 336.

49.	Misapplication and stealing of money from public funds amounts to serious culpability. In the final analysis I am of the view that the conduct of the leader amounts to serious culpability and that public policy and public good require that this tribunal should recommend something higher than recommendations to pay fines: The Leadership Code and the Organic Law on Duties and Responsibilities of Leadership are very important laws which must be administered effectively and speedily to protect the people and the nation from corruption.

50.	The findings of this tribunal handed down on 21st of April this year shows yet another leader misusing money for his own benefits when he had already been paid rental accommodation and office rental allowances and with his knowledge he intentionally approved funds from his electoral funds under the control of Papua New Guinea. I find, these cases involved clear misappropriation or if not stealing of government's monies.

51.	The intention of the Constitutional Planning Committee was that, members of the National Parliament are the elected representatives of all people in Papua New Guinea. They have been given their high position to represent the interest of their people in their electorates, and not for their own special interests.

52.	That is why, the C.P. C recommended that where a leader is found guilty of breaching the Leadership Code, the leader should be automatically dismissed from the office. If this tribunal is satisfied that there are extenuating circumstances to justify imposition of alternative penalties, it may so recommend. (See the C.P.C. Report, Ch.3 paragraph 97).

53.	The leader's case is another classic instance of misappropriation of public money for his own use and that of his associates in his executive officer's rented office in Kiunga. The leader had clear conflict of interest in the rented office in Kiunga because the rented property belonged to his executive officer Kaspar Martinus. This was a very clear case where the leader demeaned his ministerial office and had endangered and diminished respect for the confidence and the integrity of the government of this nation: The Matter of Tribunal Established under Section 27 of the OLDRL and In The Matter of Leo Robert Morgan [1978] PNGLR 460

54.	The statutory scheme on any penalty for misconduct in office by Leaders, under s.27 (5) of the Organic Law on Duties and Responsibilities of Leadership is that where a tribunal finds a Leader guilty of misconduct in office, it must recommend his dismissal to the appropriate authority. On the instant Reference, if there are extenuating circumstances, alternative penalties may be imposed pursuant to s.28 (1A) of the Leadership Code.

55. 	Procurement process of monies alleged on the instant Reference may be similar as was in the latest case of Hon. Ronny Bruce Knight-MP Member for Manus Open (1.5.2015) (Ref. No.2 of 2014 (No.2) where this tribunal found that the leader was seriously culpable. (See also Hon. Fidelis Semoso MP, Member for Bougainville Regional (24.7.2012) Ref. No.1 of 2012). In the later Reference, the tribunal recommended dismissal as well.

56.	Comparing the nature of the current Reference with the cases of Hon. Mark Maipakai, MP Member for Kikori Open (6.62012) (No.5) Lt. No.2 0f 2012 or that of Hon. Dr. Puka Temu (2006) N3099 or that of Grnad Chief Sir Michael Somare (2011) N4224 or that of Dr. Billy Manoka Commissioner of I. C. C. C (25.7.2014) N, I am of the view that, the Leader on the current Reference was seriously capable in allowing his integrity and that of the government of the day to be called into question.

57.	Does the "public policy" and "public good" require the highest penalty to be imposed? As I have said, the three misappropriation cases involved misuse of government's money. Obviously these cases involved serious culpability. I answer to the question posed in the positive. Applying the totality principle to the proven charges, it is our consensus opinion that the Leader be recommended for dismissal from office: Peter Peipul-v-Hon Justice Sheehan, Orim Karapo & Iova Geita & Ors (supra). For the foregoing reasons, pursuant to s.28 (1)(g) (ii) of the Constitution and s.27 (5) (a) of the Organic Law on Duties and Responsibilities of Leadership, I recommend to the appropriate authority, that the Member for North-Fly Open Electorate Honourable Boka Kondra MP be dismissed from office.

1.	 I. Kurei: The Leader Hon. Boka Kondra M.P. Member for North Fly, and Member for Western (Fly) Provincial Assembly, and Minister for Tourism, Arts and Culture has been found guilty by this Tribunal on six allegations.

2.	 There are three categories of allegations presented. Allegations 1, 3 and 5 are laid as breaches of Section 13 (a) of Organic Law on Duties and Responsibilities of Leadership (OLDRL). Whereas the other three, that is Allegations 2, 4 and 6 are breaches of Section 27 (5) (b) of the Constitution.

3.	 The Leader has been found guilty on all six allegations as presented by the Counsel Assisting the Tribunal. The proceeding requires this tribunal to consider what should be an appropriate penalty or penalties to impose on the Leader. Thereafter the lawful conclusion is for this tribunal to make recommendation to the appropriate authority pursuant to Section 27 (6) OLDRL, that is the Speaker of the National Parliament.

4.	 There are certain criteria needed to be considered before this tribunal can safely arrive at the appropriate penalty/ies. The matters or issues to be considered "serious culpability" on the part of the Leader and whether or not the "public policy and public good" require the ultimate penalty of dismissal or other penalties as prescribed in Section 2 of the Leadership Code (Alternative Penalties) Act 1976.

Issue

5.	 Was there serious culpability on the part of Hon .Boka Kondra M.P. for the six allegations he has been found guilty and do public policy and public good require or warrant his dismissal from office.

6.	 What then is "culpability" or "serious culpability" Little Oxford English Dictionary, Indian Edition, the word 'culpability' is noun for the word culpable, which is, adjective and defined as "deserving blame" whereas "serious culpability" as expounded in the tribunal case of John Nilkare as "It involves serious blame, an act involving wrongful intention or negligence, and act deserving censure."

7.	 In the leadership tribunal, what is meant by "public policy" and "public good?" There are no interpretations of the phrases in the OLDRL or in the constitutional law.

8.	 Late Deputy Chief Justice Sir Mari Kapi (as he then was) in John Nilkare's (1) case in discussing the scope and effect of s.27(1)(b) of the Constitution outlined as follows:- 

"One thing is clear, it is the public perception that is dominant theme. Section 27 (2) speaks about "doubt in the public mind." When demeans his office or his integrity is called into question this will diminish the respect for and confidence of the government. What then are proper standards of conduct? Here a leader breaches or ignores any law of Papua New Guinea, he is likely to breach s.27 (1) (b) – (d) of the Constitution."

9.	 Earlier in 1978, the Supreme Court in Re. Leo Robert Morgen(2), said:

"A leader has a duty not to place himself in a position in which he could have a conflict of interest or might be compromised when discharging his duties, not to demean his office or position, not to allow his public official or personal integrity to be called into question, not to endanger or diminish respect for and confidence in the integrity of government and not to use his office for personal gain. And in this connection 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 not be considered as "penalising" 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. No citizens need become a "leader".

10.	 The laws are crystal clear, Section 27 (5) of OLDRL which states, the Leader who is subject to this law is guilty of misconduct in office, the tribunal recommend, to appropriate authority for dismissal from office or some other penalty provided for by an Act of Parliament be imposed as it is permitted by Section 28 (1 A) of the Constitution.

11.	 Section 28 (1A) of the Constitution, is clear if there is no serious culpability and public policy and public good do not require dismissal then the tribunal may recommend to appropriate authority that some other penalty provided for by a relevant law be imposed.

12.	 Section 2 of the Leadership Code (Alternative Penalties) Act provides for alternative penalties that may be recommended, they range from fine, entering into own recognizance, suspension, or reduce in salary (s.2 (a) to (f).These penalties are available in the event dismissal is not recommended. (Jerry Singirok case)(3) 

13.	 The Tribunal decision on penalty in Sir Moi Avei's case (4) in its lengthy discussion on serious culpability, public policy and public good, following are highlighted.

•	 "A leader's status or other recorded good deeds or indeed, as in this case acclaimed contributions and experience, does not make undesirable misconduct any less a conduct."

•	 "for purposes of reducing culpability in relation to any serious case of misconduct in public office, quite obviously a popular and well achieved leader would have a better chance of obtaining a favourable result from Leadership Tribunal then perhaps an unknown first time parliamentarian or someone little known to the public, for the same misconduct. That is why we think the serious culpability is in the misconduct and the circumstances surrounding its commission quite independent of a leader's personal attributes.

•	 "Public policy must surely be that District Support Grants are not to be treated as a social welfare fund……………….. Surely there is no public good in dishing out disbursements for the benefit of individuals….. To say there is public good in assisting struggling families with school fees and other expenses is not convincing."

The Tribunal found there was serious culpability on the part of the Leader and accordingly recommended dismissal from office.

14.	 In comparison let me consider the Supreme Court decision in Peter Peipul –v- Leaderhsip Tribunal (SC No.2 of 2002, 24-05-02) (5) a 3:2 majority (Amet CJ, Los J and Injia J; Kapi DCJ, and Sawong J dissenting) found the tribunal chaired by Sheehan J had erred when it recommended that Mr. Peipul be dismissed from office as he was found guilty of five allegations of misconduct in office. I highlight some of what Amet CJ (as he then was) said in Peipul's case.

•	 "I raised with Counsel whether the manner in which, Leadership Tribunals and upon review, the National and the Supreme Courts, have been treating the determination and recommendation of appropriate penalty was what was in fact intended and envisioned by the founders of the Constitution and Leadership Code regime."

•	"In reading these various provisions together, I am of opinion that it was not intended that against each provision such as 27 (1)(a), (b), (c) (d) or 27 (2) (3) or (4) individual disjunctive penalties be imposed, but rather findings of guilt may be made in respect of such distinct alleged offences and that the consideration and that determination of appropriate penalty to be recommended to the appropriate authority is to be in respect of totality of conduct or conducts found to be in breach of the Leadership Code requirements."

•	 "I do believe the "public policy" and "public good" require that leaders who are found to have misconduct themselves in office be PENALISED. I do not believe, however that it is good policy to conclude that every such leader should automatically be expected to be dismissed from office as a matter of public policy. These are so many variable in the conduct that each one must be on its merits.

15.	 Considering the two cases, Sir Moi Avei's and Peter Ipu Peipul's cases, also in Michael Nali's (6) case which this Tribunal adopted the interpretation of the terms "public policy" and "public good" in deciding appropriate penalty in Hon. Ronny Knight's case. I am of view that each case be decided on its merit, as expressed in the Peipul's case by the highest court of the land.

16.	 To ascertain what is the appropriate penalty, it is best to revisit the facts and circumstances on how the public funds were misapplied by the Leader Hon. Boka Kondra.

17.	 The Leader is found guilty of misapplication of K85, 276.00 from North Fly DSIP and DSG funds to pay for his electoral office in Kiunga. Also from the same funds K134, 966.62 was misapplied to pay for accommodation rentals in Port Moresby for use by the Leader and his family. Furthermore K18,200.00 of the same funds was used to offset a personal hire of a vehicle in North Fly District.

18.	 Substantial amount of North Fly District DSIP and DSG were used and the Leader knew very well he was being paid every fortnight to pay off those debts. However he allowed those around him to process necessary payments in the end he, the Leader benefited.

19.	 No doubt by his actions the Leader demeaned his office, thereby allowed his official and his personal integrity to be called into question. No blame can be shifted to any other person, as a leader the bucks stops with him.

20.	 There is no secret, the government funds destined for improvement of the government services to the District has been misapplied only to enrich very few cronies of the Leader. The people of North Fly who are rightly to benefit from National Government budgetary allocations are left high and dry so to speak. The question that can be paused is, "is this the style of leadership people of North Fly deserve?"

21.	 No amount of good that the M.P Boka Kondra has done for his electorate, in his first term and now as a Minister of Cabinet in his second term, the good he has done for PNG cannot reconcile with what he allowed to happen in misapplication of the said funds.

22.	 The Chapter 3 of the Final Report of the Constitutional Planning Committee makes it much clearer.

The 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 interest. 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."

23.	 Furthermore CPC Report on paragraph 37 it states:

"If a leader commits a breach of the Code he should automatically lose his office unless there are extenuating circumstances which justify lesser punishment…."

24.	 The vision and wisdom the founding fathers of Papua New Guinea is enacted in Section 27 (5) (a) of OLDRL. That is if a leader is found guilty of misconduct in office, he should be dismissed. Unless of course as permitted by Section 28(1A) of the Constitution, for this Leadership Code (Alternative Penalties) Act 1976, which Section 2 provides for other forms of penalties to be recommended to appropriate authority.

25.	 Bearing in mind what has been outlined above I make contrast of what the Supreme Court in Peipul's case has said because they are pronouncement of law have relevance to the penalty regime. Peipul was found guilty of five allegations of misconduct in office, was subsequently recommended for dismissal. However the Supreme Court in its deliberations and by majority, 3 to 2 ruled the leadership tribunal erred in law and said the recommended penalty of dismissal was too harsh.

26.	 The allegation Peipul was found guilty of was of not disclosing his interest in which he was Minister for Public Service and his relative was appointed into a leadership position with Public Service of PNG.

27.	 In this instant case the leader is found guilty of six allegations all of which are related to misapplication of public funds allocated to North Fly District.

28.	 Having briefly outlined the penalty regime above and bearing in mind numerous case laws as well as previous tribunal cases I ask myself two questions:

1)	 Does the totality of the course of proven misconduct in office show serious culpability or serious blame or an act deserving censure on the part of Hon. Boka Kondra?

2)	 Does public policy and public good require, given the totality of proven course of misconduct in office, that this Leader be recommended for dismissal from office?

29.	 The Counsel for the Leader Mr Molloy and Counsel assisting the Tribunal Mr Kaluwin respectively filed written submissions and have summarised their submissions before the Tribunal.

30.	 For the Leader, four Character References have been tendered. The references, as expected highly commend the Leader, his good leadership qualities, a practising Christian, goods and services he has provided to the people of his electorate.

31.	 The Counsel for the Leader, on paragraph 12 of the submission advances the line of argument that circumstances of the misconduct do not support a finding of serious culpability. I intend to briefly touch on this later hereunder.

32.	 On the other hand Mr Kaluwin gave a summary of his submission pointing out relevant laws, quoting relevant parts of CPC Reports and pointing out decisions of previous Tribunal cases, as well as tribunal matters that superior courts have ruled on.

33.	 Serious culpability, public policy and public good were outlined. In the end it was submitted Section 27(5) (a) (6) of OLDRL to be applied by this Tribunal.

34.	 My view on character reference, as I said in the Tribunal matter of Dr. Billy Manoka, is that such reference can be good and bad at the same time. In this case the goodness that the Leader has or possess has not been translated into stopping the misapplication of government funds that was going on in District Administration and the District Treasury in North Fly District. As such I have reservation on the line of argument advance in paragraph 12 of the submission for the Leader. I therefore follow what has been said in the Tribunal matter of Sir Moi Avei which I have highlighted above. 

35.	 Having considered the respective submissions on appropriate penalty by the respective counsels. As well as their assistance on relevant legislation and applicable case laws, for example, Peter Ipu Peipul –v- Hon. Justice Sheehan, Orim Karapo and Iova Geita (24-05-2002) SMC of 2002, in which much was discussed on "totality of the circumstances" and "totality of breach principle" by C.J. Amet (as he then was).

36.	 I now move on to decide on the two questions I paused above. The final analysis I now arrive at, the conduct of the Leader in my view amounted to serious culpability and the public policy and the public good require this Leadership Tribunal recommend the ultimate penalty. I adopt what Supreme Court said in Re Joseph Auna [1980] PNGLR 500 said, that purpose of the Leadership Code is directed towards "removing a person who is considered after due inquiry, to be unworthy on continuing in office." I therefore return my two answers in the positive.

37.	 Indeed, the Leader Hon. Boka Kondra M.P for North Fly and Minister for Tourism, Arts and Culture, as well Member for Western Provincial Assembly, the proven misconduct show serious culpability on the part of the Leader. 

Furthermore, the public policy and public good require, in the given circumstances the Leader be recommended to the appropriate authority for dismissal.

1.	 R.A.JOHNSON, The Tribunal enquiring into allegations of misconduct in office by the "leader" Honorable Boka Kondra MP, Member for North-Fly Electorate found the leader guilty on all the six (6) allegations. All those categories relate to misappropriation of public monies pursuant to S.13(a)(b) of the OLDRL and the other three (3) allegations are breaches under S.27(5)(b) of the Constitution.
 
Categories of Allegations 

2.	 The three Categories of allegations referred to the Tribunal to enquire into are:

i)	the leader misapplied K85, 276.00 which were monies under the control of the State held in the North Fly Open Electorate Treasury to pay for rentals of the electoral office in Kiunga when receiving electoral allowances in his fortnightly salary for that purpose.

ii)	the leader misapplied K134,996.62 money under the control of the State to pay for his rentals in Port Moresby when he was receiving housing allowances in his fortnightly salary.

iii)	the leader misapplied K18,200.00 which was under the control of the State to settle a personal debt which was incurred during the 2007 National Elections. 

3.	 The Tribunal has unanimously found the leader guilty on allegations 1-4. It also found the leader guilty on allegations 5 and 6 by majority. The categories of allegations are misapplication of funds under S.13 of the OLDRL whilst the other three allegations are breaches under the Constitution.

4.	 The final task for the Tribunal is to decide on the issue of appropriate penalty. Counsels have made submissions on this issue and it is for the Tribunal to make the decision. The decision that is reached by the Tribunal is conveyed to the appointing authority by way of recommendation. This is by operation of the law under S.28(1A) of the  Constitution and S.27(5)(a)(b) OLDRL recommends its decision or penalty to the appointing authority.

Penalty Provisions

5.	 To determine appropriate penalty the tribunal is bound by the following laws:

Section 27(5) OLDRL

"(5) If the tribunal finds that a person to whom this 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 an Act of the Parliament be imposed." 

6.	Section 28(1) (g) and (1A) of the Constitution states:

"28. Further provisions.

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

(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

(i) 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;

(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."

7.	The Leadership Code (Alternative Penalties) Act under S.2 states:

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, 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 of demotion—he be demoted."

8.	The maximum penalty under the Leadership Code is that of dismissal from office and that is the starting point. Upon finding the Leader guilty of misconduct in office the tribunal must recommend dismissal unless it is satisfied that there is no "serious culpability" on the part of the leader, and further that "public policy" and "public good" require that the Leader should not be dismissed from office.

9.	It is a mandatory that the Tribunal under s.27 (5) (a) or (b) of OLDRL must make a recommendation to the appointing authority either to dismiss the leader or recommend other penalties depending on whether, there was serious culpability or not.

10.	The Leadership Code (Alternative Penalties) Act provides for alternative penalties that may be impose on Leaders for breaches of the Leadership Code where there is no serious culpability.

What is serious culpability?

11.	Culpability relates to the degree of blameworthiness on the offender. Prior to imposing any penalty, this Tribunal must fix the culpability or blameworthiness on the offender. In determining this issue, the tribunal is entitled to take into account factors which aggravate the Leader's case and those matters which would be considered in favor of the Leader. (See Re John Nilkare (1997) SC536). 
 
12.	In the Reference by the Public Prosecutor and The Honorable Anderson Agiru MP (18.1.02) the Tribunal cited the criminal case of The State-v-Morobet Awit Koma & Peter Kevin [1987] PNGLR 262 at 263 where Wilson J said a starting point in deciding a penalty is to fix the issue of "culpability or the blameworthiness on the prisoner". (See also Reference by the Public Prosecutor and the Hon. Peter Ipatas (4.8.06) N3078.

13.	The Tribunal in this enquiry found that the Leader guilty of misapplication of monies under the control of the State. The Leader misapplied K85, 276.00 to pay rentals for his electoral office whilst receiving an allowance for that purpose through his fortnightly salary. He also misappropriated K134, 996.62 money under the control of the State when at the same time he was receiving an allowance for that purpose through his regular salary.

14.	The third allegation relates to a private debt that was settled using State funds in the sum of K18, 200.00 in 2007 during national elections.

15.	It my view, the action of the Leader mounts to very serious culpability when he knowingly was getting paid his allowances under the SRC Determinations and yet keeping the money and getting the North Fly District Administration to settle outstanding debts. The Leadership Code and the OLDRL imposes great responsibilities on our Leaders and as such the leaders must live up to the standard required by the law. 

16.	The standard of "culpability" or "blameworthiness" would be almost as high as in criminal trials. The tribunal had already found that, the Leader was seriously culpable when dealing with moneys for his own benefit.
 
17.	Bearing in mind, the amendment to s.27 (4) of the OLDRL requires that the due inquiry be conducted with legal formalities and in strict compliance with the rules of evidence and the provisions of the Evidence Act. I remind myself that the decision before this Tribunal is not a sentence after a finding of guilty in a criminal trial.

18.	So the standard of "culpability" or "blameworthiness" would be almost the same as that of a criminal case. In the Reference by Public Prosecutor and Hon. John Nilkare MP (1996) 2nd July 1996 described serious culpability in this way "It involves serious blame, an act involving wrongful intention or negligence, an act deserving censure". 

What is Public Policy and Public Good: Leadership Code and the CPC REPORT?

19.	Our fore fathers had a dream for PNG pre independence and because they were visionaries they were able to foresee the future of this nation and set the foundation in envisaging a "leader". The Constitutional Planning Committee (CPC) Final Report 1974 covers a whole range of areas and chapter 3 covers the Leadership Code. The CPC says:
The holders of responsible positions, the leaders, because of the positions they hold are very often in the public eye. How they conduct themselves is observed by many. For their part the people naturally expect great things of their leaders, who can set the tone for the whole nation and make a positive contribution to the national morale. For without being able to formalise their sentiments the citizens like to see embodied in their leaders all that is best in the nation; and they like to have leaders worthy of identifying themselves with. To this deep and traditional feeling, the leaders of the country must respond positively and truly. By doing so they will build up the confidence of the people, and give the nation additional solidarity, so that the citizens, inspired by the high standards set by their elected representative and officials, can feel one with their leaders in contributing to and consolidating the national ethos.

No-one can do more to set the tone and style of the nation than the leaders. Contrariwise, no-one in the nation can do more to lower the standards than the leaders. Leaders are expected to demonstrate their leadership both by listening to the people, and by speaking to and for them. More importantly, they are meant to give leadership in action. Both by inaction and improper action, the leaders can betray the people's confidence in them. What the leaders do and how they are seen to do it; these are things that can legitimise them in the eyes of the people and set the standards for the nation. 

20.	In an overseas case of Naylor, Benzon & C. Ltd – Krainische Industries Gessillschaft (1918) 1 KB 331 at p. 342 where the Court there said, "public policy appears to mean the ideas which for the time being prevailed in a community as to the conditions necessary to ensure its welfare" and anything done contrary to such idea would be "injurious to the public interest…".

Submissions on Penalty

21.	Counsel for the leader in his submissions referred to cases which I will refer to in my discussions later on. He submitted that the substantive findings are allegations 1,3 & 5. Whilst the findings of guilty are acceptable, all payments were made by people other than the District Administrator. He authorized the payments and signed the cheques. That the conduct was that of other people that brought about these. 

22.	He further submitted that comparatively, the Leader is inexperienced in the public service than the District Administrator who is very experienced. The leader did not authorize the payments nor sign the cheques, it was by other people. It was the District Administrator who authorized and made the payments when it was clearly within his powers to veto unauthorized payments. Yet it is the leader to shoulder the blame and the penalty.

23.	He argued that these findings do not support serious culpability. The Leader is guilty but not culpable and submitted for a short term of suspension from office and invited the Tribunal to consider other people's involvement in the allegations. 

24.	Counsel tendered four (4) character references from Kawuk Konmok, President Ningerum LLG, Rev. Joe B. Pandu from Assemblies of God, Pastor Kwiwa Kwanekya, Christian Revival Church and Martin Bani, North Fly Student Association president at UPNG. Basically saying the Leader is of good character, a Christian and member of the Assemblies of God Church, assists in preaching and supports other church activities, quiet and humble person with good relationship with people in the community, made a lot of changes to the people of North Fly, initiated North Fly Sponsorship Programme, has an unblemished record. 

25.	Counsel assisting the tribunal also referred to cases which I have discussed below. He submitted that if the Leader was inexperienced he still had the electoral staffs who are answerable to him. He should not shift the blame but be held responsible. It was submitted that the Leaders unblemished record caused him to win the elections and once he is a Leader he is expected to conduct himself as expected of him by the Leadership Code.

26.	Counsel submitted that cases that are referred are about corrupt conducts. He discussed cases which will be discussed later on. The thrust of the Leadership Code and its primary purpose is to preserve the people of PNG from misconduct by its leaders. He pointed out that Hon. Ronny Knight MP was dismissed from office for the purchase of a vessel which was used by the people. In the instant case the Leader benefitted personally. So there is no room for other penalties except recommendation for dismissal from office.

Appropriate Penalty
 
27.	The remaining task of this tribunal now is to determine whether its findings of misconduct in office, considered individually or in their totality constitute serious culpability so as to require it to recommend to the Speaker of Parliament to dismiss the Leader pursuant to s.27 (6) of the Organic Law on Duties and Responsibilities of Leadership. If it finds there is no serious culpability, it must go on to consider whether it can resort to the alternative penalties provided by s.28 (1A) of the Constitution.
In the case of Peipul V Justice Sheehan & Ors (2002) SC 706 per Amet CJ; Re Sir Michael Somare the Leadership Tribunal looks at the totality of the findings of misconduct in determining what recommendation should be made. No one bears the burden of proof on penalty.

28.	In the recommendation on penalty in the case of Jerry Singirok handed down on 21 March 2000 at p.10 

"The law is very clear as to when a Leadership tribunal can impose an alternative penalty under the Leadership Code (Alternative Penalties) Act. Firstly it must determine if there is no serious culpability on the part of the person found guilty of misconduct in office. If it decides there was no serious culpability on the person found guilty of misconduct, it must then decide whether public policy and public good do not require dismissal".

29.	In the tribunal of Peter Ipu Peipul V Hon Justice Sheehan, Orim Karapo & Iova Geita & Ors, SCM 2 of 2002at p.26 per Amet J (as he then was) said:

"I am prepared to accept the proposition that S.28 (1) (g) does imply that in all findings of guilty of misconduct in office the Tribunal starts with the primary premise that it shall recommend dismissal from the office unless pursuant to S.28 (1A), (a) and (b) it found that there was no serious culpability and that public policy and public good do not require dismissal".

30.	Whatever penalty the Tribunal imposes will depend on the circumstances of allegations for which the leader was found guilty. All the three Categories are serious as they relate to misapplication of funds and should attract the maximum prescribed penalty: Reference by Public Prosecutor and Honourable Dr. Puka Temu MP (2.8.06).

31.	The next question is does the public policy and public good require dismissal from the office he holds? There is no question that the Leader was culpable for what he did. His actions amounted to "double dipping" and misapplication of public funds.
 
32.	The Constitutional Planning Committee in its Report was concerned about enforcement of the Leadership Code that it should not just be mere directives but it should be morally and legally binding on leaders. In Chapter 3 of the Report at paragraph 43, it said something about misappropriation of funds in the following words:

"Misapplication of funds is another very serious offence which is all too common at present not only in the government but in co-operatives and private enterprise as well. We see a need for our leaders to set an example to others inside and outside government service, in the proper use of government funds, and therefore the inclusion of this rule in the Code."
 
33.	The Leadership Code and the OLDRL impose greater responsibilities on our leaders and as such the leaders must conduct themselves with dignity, integrity and probity.

34.	Any assessment of serious culpability is a question of degree and is not an absolute exercise but is comparative: Re John Nilkare (1997) SC 536, see also Peter Peipul v Sheehan & Ors (2002) SC 706. Thus the culpability of the Leader ought to be judged bearing in mind the totality of what has been proven: Re Sir Michael Somare (2011) N4224. 

35.	The law on appropriate penalty is clear, the maximum being dismissal from office. The responsibility placed on leaders is of a higher calling and all breaches under the Leadership Code are serious. 
 
36.	In the Supreme Court Reference SC Reference No.2 of 1992, Reference by the Public Prosecutor [1992] PNGLR 336 a five men Supreme Court bench comprising of Kidu CJ, Kapi Dep. CJ, Amet, Los & Andrew JJ accepted the referrer's submission and held that "the entire thrust and primary role of the Leadership Code is "to preserve the people of Papua New Guinea from misconduct by its leaders". Leaders have a duty not to conduct or place themselves in a position in which he or she could have a conflict of interest or where he or she might be compromised.
 
37.	In an earlier case, The Matter of Tribunal Established under Section 27 of the OLDRL and In The Matter of Leo Robert Morgan [1978] PNGLR 460, the Supreme Court consisting of Prentice C.J., Saldanha & Andrew, JJ at page 463 quoted s.27 of the Constitution and at page 464 the Court commented:

"A leader has a duty not to place himself in a position in which he could have a conflict of interests or might be compromised when discharging his duties, not to demean his office or position, not to allow his public official or personal integrity to be called into question, not to endanger or diminish respect for and confidence in the integrity of the government and not to use office for personal gain". 

38.	Although all Leadership Code breaches are serious, not all will attract the maximum as the appropriate penalty depending on each case circumstance. Some misconduct in office offences are such that the obvious result of dismissal would be apparent while some may not be that obvious. 

39.	It has been said that where an offence of misconduct in office falls within the realms of a crime, then obviously that reflects very serious culpability which may warrant dismissal: Reference by the Public Prosecutor and In the Matter of Anderson Agiru (18.1.02), Reference by the Public Prosecutor and Hon. Michael Nali MP (2003) N2399, In the matter of Reference by the Public Prosecutor and in the matter of Gerard Sigulogo [1988-89] PNGLR 384.

40.	On the issue of public policy and public good, the Supreme Court in Peter Ipu Peipul v Sheehan (2002) SC 706, (see judgment of Amet, CJ (as he then was) said:

"I do believe the "public policy and public good" require that leaders who are found to have misconducted themselves in office be PENALISED. I do not believe, however that it is good policy to conclude that every such leader should automatically be expected to be dismissed from office as a matter of public policy. There are so many variables in the conduct that each one must be on its merits."

41.	We adopt the interpretation of the terms "public policy" and "public good" given by the Tribunal in Reference by the Public Prosecutor and Hon. Michael Nali MP (2003) N2399 where it cited quotes from a number of overseas cases which give interpretation of the above words. The Tribunal considered that "public policy exists and evolves for the public good and public welfare…so that if breached, it becomes injurious to the public interest and good". 

42.	The phrase "public policy" may be interpreted to mean the ideas or concepts of practice which prevails in a community for the time being to ensure its welfare and where anything is done against such practice may be treated as against the public policy and public good and actions which may border on criminal prosecution. 

43.	Whilst the relevant laws make reference to "public policy" and public good" there is no interpretation of these phrases for clarity purposes. 

44.	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." 

45.	At paragraph 13 of that Report, the Committee said:

"… We believe that, perhaps the single most important factor in determining the direction of national development is the quality of leadership…" 

46.	Further down in paragraph 37 of the CPC Report, its states:

"If a leader commits a breach of the Code he should automatically lose his office unless there are extenuating circumstances which justify a lesser punishment…."

47.	The Tribunal's determination on the findings of guilt for all the allegations reveals glaring instances of very serious culpability on the part of the leader. Each Tribunal member stated the seriousness of the misconduct in office by the leader in the judgments on verdict and found there were clear breaches of s.27 of the Constitution and S.13 of OLDRL by the leader. 

48.	In the Ref by the Public Prosecutor and Hon. Bernard Hagoria (3.9.2003) N2525 the tribunal said:

"But it seems to us, the way the "discretionary" funds have been administered in this case and perhaps in other cases too, is that the Member of Parliament has become, quite improperly, the chief and perhaps the sole critic administrator of this fund. 

He has improperly assumed the role of the chief planner, the sponsor or designer of projects, the approving authority, the accountant, the project supervisor and the paymaster."

49.	In Re Joseph Auna [1980] PNGLR 500 the Supreme Court said the purpose of the Leadership Code is directed towards "removing a person who is considered, after due inquiry, to be unworthy on continuing in office". 

50.	All leaders have a duty not to place themselves in positions where a conflict of interests arises where a leader might be compromised when discharging their duties, not to demean their offices or the positions they hold as was in this case. The leader in this enquiry had allowed his public, official and personal integrity to be called into question and not worthy to continue to hold office.

Totality Principle

51.	Having considered counsels submissions and address on penalty and the appropriate legislations as well as taken into account the character references on behalf of the Leader my final analysis for and against the Leader, I form the view that there was serious culpability or blameworthiness on the part of the Leader and public policy and public good does require dismissal. 

52.	The Tribunal reminds itself about the issue of dealing with multiple findings of guilty of misconduct in office by the Leader. I have considered the "separate determination" and "totality principle" approach when coming to imposing penalties on multiple charges. 

53.	Applying the "totality of the circumstances" and the "totality of breach" principles approach as was in the case of 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 I recommend the totality principle be applied because I have considered that the highest penalty be imposed here. 

Recommendation

54.	The Leader is recommended to be dismissed from the office he holds as Member for North Fly Open Electorate. 

Conclusion

55.	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 forwarded to the Speaker for presentation to the National Parliament and the National Executive Council.

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The Public Prosecutor:  Counsel Assisting Tribunal
 Pacific Legal Group Lawyers: Counsel for the Leader.