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In re Nali (No.1) [2003] PNGLR 15 (6 June 2003)

NATIONAL COURT OF JUSTICE

IN THE MATTER OF - THE REFERENCE BY THE PUBLIC PROSECUTOR PURSUANT TO SECTION 27 (2) OF THE ORGANIC LAW ON DUTIES AND RESPONSIBILITIES OF LEADERSHIP;

AND IN THE MATTER OF - THE TRIBUNAL APPOINTED UNDER SECTION 27 (7) (E) OF THE ORGANIC LAW ON THE DUTIES AND RESPONSIBILITIES OF LEADERSHIP;

AND IN THE MATTER OF - THE ALLEGATIONS OF MISCONDUCT IN OFFICE BY HON. MICHAEL NALI, MP, MEMBER FOR MENDI OPEN AND A MEMBEROF SOUTHERN HIGHLANDS PROVINCIAL ASSEMBLY.
(NO. 1)

WAIGANI: GAVARA-NANU J., (CHAIRMAN), MANUE F. (MEMBER), MONOULUK P. (MEMBER), SMS.

6 June 2003

CONSTITUTIONAL LAW – Leadership Code – Duties and Responsibilities of Leadership – Misconduct in office – Wilfully inciting and leading persons assembled to act in a tumultuous manner so as to disturb the peace – Unlawful assembly – riot.

CONSTITUTIONAL LAW – Leadership Code – Duties and Responsibilities of Leadership – Misconduct in office – Wilfully interrupting, obstructing and disturbing the election proceedings – Acting in a manner unbecoming of a leader – Leader demanding that the Returning Officer stop the counting of votes and the winner declared despite the decision by the Returning Officer to continue counting.

CONSTITUTIONAL LAW – Leadership Code – Duties and Responsibilities of Leadership – Misconduct in office – Using official position during election proceedings for the benefit of an associate – Words 'associate' and 'associated' as used in ss 1 and 5 of the Organic Law on Duties and Responsibilities of Leadership discussed and defined.

Facts

The Leader who was Deputy Prime Minister and a member of the Provincial government was charged before a Tribunal established under the Constitution and the Organic Law on Duties and Responsibilities of Leadership for alleged misconduct in office The alleged misconduct comprised four allegations or charges relating to obstruction and disturbance of a by election proceedings. After considering the evidence adduced by the prosecution the Tribunal ruled that the Leader had only three of the four charges to answer. Upon presentation of the evidence of misconduct and its denial by the Leader, the Tribunal held;

Held

1. The standard of proof to be applied in leadership cases is high, but falls short of the standard required in criminal cases. The prosecution must prove the charges against the leader with cogent, clear and convincing evidence to give the Tribunal reasonable satisfaction as to the truth of the charges.

2. The Tribunal found allegations 1, 2 & 4 were proved, Mr Patrick Monouluk dissented on the finding that no 4 constituted an offence.

Papua New Guinea cases cited

In re James Eki Mopio [1981] PNGLR 416.
The State v John Kosi, Arua Au, Laki Awaya & Vetali Maurava – N303.
The State v Manasseh Voeto [1978] PNGLR 119.
The State v Ogadi Minjipa [1977] PNGLR 293.
The State v Saka Varimo [1978] PNGLR 62.

Other cases cited

Browne v Dunn [1894] 6R 67 HL.

Counsel

C Sambua, for the Public Prosecutor.
G Sheppard, for the Leader.

6 June 2003

Gavara-nanu j; Frank manue sm. The Public Prosecutor has pursuant to s27 (2) of the Organic Law on Duties and Responsibilities of Leadership (hereinafter referred to as 'the Organic Law') referred to this Tribunal a matter of alleged misconduct in office by Hon. Michael Nali, MP, member for Mendi Open and a member of Southern Highlands Provincial Assembly (hereinafter referred to as 'the Hon. Michael Nali'), being a person to whom Division 111.2 of the Constitution, and the Organic Law apply.
The matter of alleged misconduct in office against Hon. Michael Nali, comprises four allegations or charges.

Allegations 1, 2 and 3 relate to Hon. Michael Nali allegedly leading a riot and obstructing and disturbing election proceedings in respect of the Kagua-Erave open electorate by-election on 27th and 28th March, 1999, in Mendi, and allegation 4 relates to Hon. Michael Nali allegedly using his official position for the benefit of another on 27 and 28 March, 1999, in Mendi, during the same by-election.

The particulars of the 4 allegations or charges against Hon. Michael Nali are stated hereunder: -

Allegation 1

That on 27 March, 1999, the Leader failed to carry out the obligations imposed by s 27 (1) of the Constitution;

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

(a) demeaned his offices as member of the Parliament for Mendi Open and member of the Southern Highlands Provincial Assembly; and

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

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

And furthermore the Leader failed to carry out the obligations imposed by s 27 (2) of the Constitution:

By engaging in an activity that might be expected to give rise to doubt in the public mind as to whether he was carrying out the duty imposed by s 27 (1) of the Constitution;
In that he wilfully incited and led persons assembled at Mendi to act in so tumultuous a manner as to disturb the peace thereby being riotously assembled;

And furthermore by that conduct he contravened s 65 of the Criminal Code Act, thereby committing a criminal offence under that law punishable on conviction by imprisonment for a term not exceeding three years;

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

Allegation 2

That on 27 and 28 March, 1999, the Leader failed to carry out the obligations imposed by s 27 (1) of the Constitution;

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

(a) demeaned his offices as member of the Parliament for Mendi Open and Member of the Southern Highlands Provincial Assembly; and

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

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

And furthermore the Leader failed to carry out the obligations imposed by s 27 (2) of the Constitution;

By engaging in an activity that might be expected to give rise to doubt in the public mind as to whether he was carrying out the duty imposed by s 27 (1) of the Constitution;
In that he wilfully interrupted, obstructed and disturbed election proceedings for the Kagua-Erave Open Electorate and simultaneously, while in a public place, stripped off his outer clothing and continued to interrupt, obstruct and disturb the election proceedings while wearing only his underwear in a manner unbecoming of a national leader;

And furthermore by that conduct he contravened s. 108 of the Criminal Code Act, thereby committing a criminal offence under that law punishable on conviction by imprisonment for a term not exceeding three years;

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

Allegation 3

That on 28 March, 1999, the Leader failed to carry out the obligations imposed by s 27 (1) of the Constitution;

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

(a) demeaned his offices as member of the Parliament for Mendi Open and Member of the Southern Highlands Provincial Assembly; and

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

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

And furthermore the Leader failed to carry out the obligations imposed by s 27 (2) of the Constitution;

By engaging in an activity that might be expected to give rise to doubt in the public mind as to whether he was carrying out the duty imposed by s 27 (1) of the Constitution;
In that he wilfully interrupted, obstructed and disturbed election proceedings for the Kagua-Erave electorate and instigated the gathering of a crowd at Kagua Government Station that threatened physical violence and destruction of the station and other property;
And furthermore by that conduct he contravened s108 of the Criminal Code Act, thereby committing a criminal offence under that law punishable on conviction by imprisonment for a term not exceeding three years;

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

Allegation 4

That on 27 and 28 March, 1999, the Leader, except as specifically authorized by law, indirectly asked for, on behalf of his associate, a benefit by reason of his official position;
And furthermore except in the course of and for the purpose of his official duties or his official position used his official position for the benefit of another person;
In that on 27 March, 1999, he used his official position during election proceedings for the benefit of his associate, Mr Miru Luta, by leading a riot that had the effect of suspending the counting of ballot boxes;

And furthermore on 28 March, 1999, he used his official position during election proceeding for the benefit of his associate, Mr Miru Luta, by demanding that the Returning Officer not count three disputed ballot boxes that resulted in Mr Miru Luta being declared the successful candidate;

Thereby being guilty of misconduct in office under s 5 (1) of the Organic Law.
The charges were accompanied by the statement of reasons upon which the Ombudsman Commission formed its opinion that there was a prima facie case that Honourable Michael Nali was guilty of misconduct in office.

The prosecution adduced oral and documentary evidence in support of the charges. After the close of the prosecution case, the counsel for Hon. Michael Nali, made a No Case submission on all four charges. After considering the evidence adduced by the prosecution, it was the opinion of the Tribunal that, Hon. Michael Nali had a case to answer in respect of charges 1, 2 and 4, but had no case to answer in respect of charge 3.

The reason why the Tribunal found that Hon. Michael Nali had no case to answer on charge 3, was that, there was not an iota of evidence to show that he either directly or indirectly instigated a gathering of a crowd at Kagua government station which allegedly threatened physical violence and destruction of the Kagua government station on 28 March, 1999.

On 27 and 28 March, 1999, Hon. Michael Nali was at all material times at Mendi which is a long way from Kagua government station.

There was evidence that certain informations received by the police and the electoral officials on 28 March, 1999, in Mendi suggested that there was trouble looming in Kagua government station, but as we said, there was no evidence that Hon. Michael Nali was in any way implicated or that he encouraged or instigated such trouble.

Thus, charge 3 was dismissed at the close of the prosecution case upon application being made by the counsel for Hon. Michael Nali.

After the Tribunal's ruling on the No Case submission, the defence called Hon. Michael Nali to give evidence.

Facts alleged by the prosecution in respect of three remaining allegations or charges:

In the evening of 27 March, 1999, the counting for the Kagua-Erave open electorate by-election continued at the local government council chamber in Mendi town. There was a total of 79 ballot boxes. Counting went smoothly for 76 ballot boxes, but serious objections were raised against counting of 3 other ballot boxes (hereinafter referred to as 'the 3 boxes'). And after count 76, candidate Mr Charles Miru Luta, (hereinafter referred to as 'Mr Luta') was leading.

Between 6.30 pm and 7.00 pm, it was raining and cold, and a large crowd gathered around the perimeter fence of the council chamber, particularly at the front and the rear gates. The crowd at the front gate was larger and they were supporters of Mr Luta. The crowd which supported Mr Luta objected to the counting of the 3 disputed boxes and demanded that the Returning Officer declare the winner.

Despite such objection, the Returning Officer, Mr Alphonse Yapen decided that the 3 boxes would be counted, after he was assured by the Presiding Officers responsible for those 3 boxes that the boxes were not tampered with and could be counted. At that point, the large crowd at the front gate became rowdy and agitated and started demanding that the counting be stopped.

There were objects thrown onto the roof of the council chamber and some people from that crowd even tried to climb over and break the fence. Some locked the rear gate to prevent the electoral officials from leaving the counting centre.

But prior to that, Hon. Michael Nali was seen leading a crowd of people towards the front gate. They became part of the crowd that was already at the front gate. It is alleged that Hon. Michael Nali then demanded to see the Returning Officer who was inside the counting room.

Among the crowd in which Hon. Michael Nali was, was Mr Luta, who was leading the count at that time. It is alleged that, Hon. Michael Nali, Mr Luta and Mr Luta's supporters demanded that the counting be stopped as Hon. Michael Nali and Mr Luta demanded to see the Returning Officer.

After persistent demands by Hon. Michael Nali and Mr Luta to see the Returning Officer and after the policemen who were guarding the front gate assured the Returning Officer that it was safe for Hon. Michael Nali and Mr Luta to be allowed into the counting area, the Returning Officer reluctantly agreed to see Hon. Michael Nali. Hon Michael Nali was then allowed into the counting area through the front gate, accompanied by Mr Luta.

But, before they went into the counting room both Hon. Michael Nali and Mr Luta took off all their outer clothes, so they went into the counting room wearing only their underpants.

When inside the counting room, Hon. Michael Nali, in the presence of Mr Luta continued to demand that the 3 boxes be not counted and the declaration be made. Following that, the Returning Officer was forced to suspend the counting until the next day. Hon. Michael Nali and Mr Luta then left the counting centre. The crowd also dispersed at the same time.

On the following morning on 28 March, 1999, Hon. Michael Nali accompanied by Mr Luta and Mr Daniel Tulapi (hereinafter referred to as 'Mr Tulapi') who was the candidate for the Peoples Progress Party of which Hon. Michael Nali was the leader, went and saw the Provincial Police Commander in his office. The prosecution alleged that, Hon. Michael Nali went there and asked the Provincial Police Commander that counting be stopped and the leading candidate who at that time was Mr Luta be declared the winner.

While they were in the Provincial Police Commander's office, the Returning Officer arrived to talk to the Provincial Police Commander and to use his office phone to contact the Electoral Commission headquarters in Port Moresby regarding the problems he encountered in the previous evening.

At that time, the Returning Officer and the Provincial Police Commander received a radio message that there were threats made at Kagua government station of violence and destruction of the government station if the 3 disputed boxes were counted and if the declaration was not made.

The Returning Officer then phoned the Electoral Commission headquarters and advised the Deputy Electoral Commissioner of the events of the previous evening and that morning including the threats made at the Kagua government station.

The Deputy Electoral Commissioner then instructed the Returning Officer to declare the winner without the 3 remaining boxes being counted. As a result, the Returning Officer made the declaration in front of a crowd at the Mendi police station car park. Mr Luta who was leading in the previous evening after count 76 was declared the winner. It is alleged that, both Hon. Michael Nali and Mr Luta were present in the crowd, which witnessed the declaration.

Evidence

(1) Evidence by the prosecution.

The Returning Officer told the Tribunal that, in the evening of 27 March, 1999, the large crowd that was outside of the front gate demanded that the 3 boxes be not counted and "let justice to prevail". The people in the crowd were rowdy and they locked the back gate when he announced that he was going to count the 3 boxes. They were shouting and became agitated. He saw Hon. Michael Nali and Mr Luta at the front gate with that crowd.

He confirmed that while Hon. Michael Nali and Mr Luta were with the crowd outside the front gate, they demanded to go into the counting room and see him but he refused, but he later allowed them in, when they persisted, and after he was assured by the police that it was safe to let them in.

When Hon. Michael Nali and Mr Luta went into the counting room, they were wearing underpants only. Hon. Michael Nali went to him and told him that he would be in breach of the Constitution if the 3 disputed boxes were counted. He then said that the 3 boxes should be left for the Court of Disputed Returns to determine. Hon. Michael Nali then spoke to the policemen in the counting room. While they were still in the counting room, the Returning Officer suspended the counting. Hon. Michael Nali and Mr Luta then left the counting room. They then left the area together with the crowd that was outside the gate.

The next morning on 28 March, 1999, when he went to the Mendi police station to see the Provincial Police Commander, Hon. Michael Nali, Mr Luta and Mr Tulapi were already in the office. They were still demanding that counting be stopped and that he declare the winner. At that time, he heard on the police radio of the threats in Kagua of violence and destruction of the government station there if the 3 disputed boxes were counted.

He then briefed the Electoral Commission headquarters by phone about the events of the previous evening and that morning including, the threats at Kagua, and after that, he was directed by his headquarters to seal the remaining 3 boxes and lock them in a secure place and declare the winner.

As a result, he left the Provincial Police Commander's office and went to the Mendi police station car park and used the police vehicle with a loud hailer and declared Mr Luta as the winner. Straight after the declaration, he was escorted out by the police to a waiting helicopter, and left for Mt Hagen in the helicopter. He said, there was a large crowd of people who were shouting and yelling and he felt threatened, so he decided to leave early.

The evidence by the Provincial Police Commander, Mr Simon Kaupa, is that, he was in the counting room in the evening of 27 March, 1999, sitting next to the Returning Officer. At about 7.00 pm, he noticed a large crowd walking to the front gate. Later, Hon. Michael Nali and Mr Luta, walked into the counting room wearing only underpants. They were demanding that the counting be stopped and the winner declared.

He said, the crowd outside the gate was shouting and yelling, some demanded that the counting to continue while the supporters of Mr Luta wanted the counting to be stopped and the winner declared. When Hon. Michael Nali and Mr Luta demanded that counting be stopped, he advised the Returning Officer to suspend the counting, because the situation was very tense and the crowd outside was also agitated and making threats.

Later in the evening, he instructed his Police Station Commander, Sgt Ben Nabote to arrest Hon. Michael Nali and Mr Luta, but later withdrew the instruction after he was advised that, that would create another problem.

He confirmed that, on the next morning, on 28 March, 1999, Hon. Michael Nali, Mr Luta and Mr Tulapi went to his office. They wanted to know, if counting would be stopped. He said he told them that it was up to the Returning Officer.

About half hour later, he saw the three of them at the Mendi police station car park. At that time, the Returning Officer was still with him in his office trying to contact the Electoral Commission headquarters by phone.

He also confirmed that in the evening of 27 March, 1999, Hon. Michael Nali and Mr Luta demanded to see the Returning Officer during counting. They made that demand while still standing outside the front gate with a large crowd of people. After they were allowed into the counting room and while they were speaking to the Returning Officer, the crowd outside was still rowdy and agitated. He said that when the counting was suspended by the Returning Officer, Hon. Michael Nali and Mr Luta left and the crowd also left with them. After that, the place was quiet.

He said he considered the appearance of Hon. Michael Nali and Mr Luta that evening with only underpants as improper and offensive, and that was one reason why he wanted the two men arrested. He said their dressing was the talk of Mendi town.

The evidence by the Returning Officer and the Provincial Police Commander are corroborated by the other three prosecution witnesses, namely Sgt Ben Nabote, Sgt English Talimo, who was also attached to Mendi Police Station, and Mr Tande Temane, the journalist who covered the by-election.

Sgt Nabote's evidence is that, he was also inside the counting room in the evening of 27 March, 1999, during counting. He confirmed that before Hon. Michael Nali and Mr Luta were allowed into the counting room, the crowd at the front gate was rowdy and was threatening to break down the fence. It was demanding that the Returning Officer stop the counting and declare the winner. He felt scared and his impression of the crowd was that, the people there might attack the electoral officials if counting continued.

He confirmed that he was summonsed by the Provincial Police Commander at about 8.30 pm that evening and was told to put a team of policemen together to arrest Hon. Michael Nali and Mr Luta for indecent exposure. But he advised the Provincial Police Commander against it because that would have triggered more problems. The Provincial Police Commander then withdrew the instruction.

On the next morning, on 28 March, 1999, at about 7.00 am, he saw Hon. Michael Nali and Mr Luta with a crowd of about 200 people in front of the Mendi police station. The crowd was demanding that the winner be declared without the 3 remaining boxes being counted. He said, that made it impossible for the counting to continue.

Sgt English Talimo told the Tribunal that, he was also present in the counting room in the evening of 27 March, 1999. He saw a group of people being led by Hon. Michael Nali and Mr Luta to the front gate. He said, the group disrupted the counting by demanding that the counting be stopped.

He saw Hon. Michael Nali and Mr Luta walk into the counting room together wearing only their underpants. That time the crowd outside was still yelling and shouting. He was scared because the group was threatening violence. While he was still inside the counting room, he saw Hon. Michael Nali and Mr Luta talking to the Returning Officer and demanding that the 3 disputed boxes be not counted.

While Hon. Michael Nali and Mr Luta were talking to the Returning Officer, he went outside of the council chamber and saw that the crowd outside was still rowdy and shouting and threatening violence if the 3 boxes were counted.

He said, when he saw Hon. Michael Nali in his underpants, he did not appreciate it because as a community leader and a politician, he should have dressed appropriately and respectably.

He also saw Hon. Michael Nali and Mr Luta the next morning on 28 March, 1999, at the Mendi police station car park when the Returning Officer declared Mr Luta as the winner.

Mr Tande Temane is from Southern Highlands and comes from the same tribe as Hon. Michael Nali. He was also inside the counting room in the evening of 27 March, 1999. He said the crowd outside the front gate numbered about 300 and they were very anxious.

He saw Hon. Michael Nali and Mr Luta enter the counting room together wearing only their underpants. To him, the sight of Hon. Michael Nali only in underpants was an "extra ordinary situation" because he was a senior leader of the Southern Highlands Province and a former Deputy Prime Minister. He therefore decided to report it in the Post Courier. The two Post Courier reports have been tendered in evidence as Exhibits 'D" and 'E".

In the evening of 27 March, 1999, while in the counting room, he also heard Hon. Michael Nali demanding that the declaration be made because Mr Luta was leading and the 3 disputed boxes be referred to the Court of Disputed Returns. Hon. Michael Nali made those remarks in the presence of Mr Luta. He also heard Hon. Michael Nali telling the crowd before going into the counting room, that if the three disputed boxes were not set aside, democracy was finished.

(ii) Evidence by the defence.

Hon. Michael Nali was the only defence witness. He denied leading a group of people to the front gate of the council chamber in the evening of 27 March, 1999. He said, he went there earlier at about 4.30 pm just like everyone else to hear the result of the counting. At that time, he heard that the 3 disputed boxes would be put away, and after only 2 more boxes were counted, the winner would be declared, but at that time, his candidate was running behind in the counting, so he decided to go home.

At about 4.45 pm, some boys went to his house and told him that Mendi town was on fire. He was wearing a sport short and a 'T' shirt, so, he left his house wearing only those clothes. He drove to the town, and when he arrived, he found that the supporters of various candidates had surrounded the counting area.

When he walked to the crowd, he saw Mr Luta who appeared very frustrated. So he told Mr Luta that he did not want to see blood in Mendi town and told him not to take the law into his own hands. At that time, he was standing close to Mr Luta, and Mr Luta was insisting to see the Returning Officer.

About half hour later, Mr Luta removed all his clothes except the tiger underpants he was wearing. He said, he did not know why Mr Luta removed his clothes, but he told Mr Luta to respect the system and allow the system to take its own course. He asked to see the Provincial Police Commander several times to ask him to disperse the crowd because the situation was very tense. He denied that he demanded to see the Returning Officer. The messages between him, Mr Luta and the Provincial Police Commander and the Returning Officer were being relayed by the local policeman who was manning the gate, namely Constable Buka Nolpi.

He said he was trying his best to calm the crowd. He said, by then he had been standing outside the gate for about an hour and his attempts to see the Provincial Police Commander were unsuccessful. His attempts to calm Mr Luta and the crowd were also unsuccessful. It was about 8.00 pm and the place was dark and cold as it was wet with rain. He said cold was unbearable. The situation was very tense and the crowd could not reason.

He first removed his 'T' shirt to squeeze the rain water out, but later he removed the sport short he was wearing in frustration to save lives and properties. He said, it was cultural for him to strip to his underpants because that had the quelling effect on the crowd which could not reason and listen to him.

He said, it is cultural for the big men in his area to do what he did to calm and quell a tense and rowdy crowd, when words do not have any effect. And removing his sport short had the same quelling effect on the crowd. He said, after the crowd calmed down, he went into the counting room at the invitation of the Provincial Police Commander and the Returning Officer.

When he was inside the counting room he only spoke to the Provincial Police Commander. He said, he did not talk to the Returning Officer, because he had no power to do so. He told the Provincial Police Commander that he had to do more to control the crowd that was outside the gate. He only said that and left the counting room.

He said, he was in the counting room for no more than 5 minutes. After he left the counting room he told the crowd to leave and they left. He said, when he was in the counting room, nothing happened because the counting was already suspended by the Returning Officer.

The next morning on 28 March, 1999, at about 9.00 am, there was already a crowd at the Mendi police station. He was there with about 4 boys from his village, and when the Provincial Police Commander saw him, he called him into to his office. A few minutes after being inside the Provincial Police Commander's office Mr Luta and Mr Tulapi arrived. The Provincial Police Commander told him that he was worried about the situation in Kagua, and was waiting for a message from the Police Headquarters. While they were talking, the Returning Officer arrived.

He said that was the first time he knew who the Returning Officer was, because even in the previous evening when he was inside the counting room, he did not know who the Returning Officer was. And after the Provincial Police Commander spoke to him, he left the office on his own accord.

He denied that he was told to leave the office by the Returning Officer. He said, after he left the Provincial Police Commander's office, he went to the shopping centre and that was where he heard the Provincial Police Commander announcing that the Returning Officer was going to declare the winner.

Under cross-examination, he said in the evening of 27 March, 1999, Mr Luta was frustrated because he wanted to be declared as the winner of the Kagua-Erave open electorate by-election because he was leading the count. He said he did not understand why Mr Luta removed his clothes because, traditionally a big man can only strip his clothes on his own land, thus Mr Luta being from Kagua, he was not entitled to strip his clothes in Mendi, whereas, he could because he was from Mendi.

He said he removed his 'T' shirt and the sport short in frustration after Mr Luta and his supporters did not listen to him and when he sensed imminent trouble. It was done to calm the crowd and quell the tense situation, and when he did that, the crowd calmed down, then he went into the counting room.

He said in the evening of 27 March, 1999, when the Provincial Police Commander did not go to the front gate and saw him after he had asked to see him several times, he felt that he was not accorded the protocol he deserved as the Deputy Prime Minister.

He conceded under cross-examination that, when he went into the counting room, he walked in with Mr Luta. He also agreed that he went into the counting room wearing only underpants but he said the underpants he wore was the type with legs which go half way down the thighs when worn. He said it was his first time to meet Mr Luta in the evening of 27 March, 1999. He said when he spoke to the Provincial Police Commander inside the counting room, he did not talk about the declaration.

He denied that Mr Luta was his associate. He estimated the crowd in front of the Mendi police station on the morning of 28 March, 1999, to be less than 50.

Reasons for decision

The standard of proof to be applied in leadership cases is high but falls short of the standard required in criminal cases. That standard of proof was stated in In Re James Eki Mopio [1981] PNGLR 416 at pages 420-421, where the Supreme Court comprised of five judges said:

"All of the above tests may well be useful but in our view there is no absolute degree or standard of proof to be applied by the Leadership Tribunal. The Tribunal must be reasonably satisfied of the truth of the allegations or denials. In reaching such a conclusion it must give full weight to the gravity of a charge of misconduct in office by a person subject to the Leadership Code, the adverse consequences which follow and of the duty to act judicially and in compliance with the principles of natural justice. In practical terms the standard is not as high as the criminal proof beyond reasonable doubt but in our opinion, the very nature of the offence of misconduct in office created by the Constitution and the Organic Law on the duties and Responsibilities of Leadership, will require a higher standard of proof than that ordinarily applicable in civil cases, namely proof on a balance or preponderance of probabilities. In matters involving accusations amounting to criminal conduct, the standard must be close to that applicable in a criminal trial".

So applying this principle the prosecution must prove the remaining 3 charges against the leader with cogent, clear and convincing evidence to give the Tribunal reasonable satisfaction as to the truth of the charges.

The reason why such a high standard of proof is required or applied by the Leadership Tribunals is obvious; the consequences of guilty finding by the Tribunal are grave, in that the Tribunal can recommend dismissal from office against the leader, pursuant to s 27 (5) of the Organic Law. Consequence of which is that the leader will lose not only his position and status which in the instant case is as the member of Parliament and of the Southern Highlands Provincial Assembly, but he will lose all the privileges attached to those positions and further more, he will not be eligible to hold any leadership position for the next three years.

We now turn to determine each of the three remaining allegations or charges separately: -

Allegation 1

Did Hon. Michael Nali, on 27 March, 1999, fail to conduct himself in the manner required by s 27 (1) and (2) of the Constitution, by wilfully inciting and leading persons assembled at the Mendi town in so tumultuous a manner as to disturb the peace and thereby being riotously assembled, which was a conduct contrary to s. 65 of the Criminal Code Act, Chapter No. 262?

Honourable Michael Nali has denied this charge. He said, in the evening of 27th March, 1999, he was at all times trying to control the crowd which was almost getting out of control.

However, there is evidence from the prosecution witnesses that he was seen leading a group of people towards the front gate of the council chamber. That evidence comes from the Returning Officer, the Provincial Police Commander, Sgt Ben Nabote and Sgt English Talimo.

These witnesses including Mr Tande Temane each told the Tribunal that they saw and heard Hon. Michael Nali and Mr Luta demanding that the 3 disputed boxes be not counted, and that Mr Luta who was leading the count be declared the winner. So they corroborated each other on that point.

The charge is based on s 65 of the Criminal Code Act, which is the penalty provision for taking part in an unlawful assembly. But s 63 of the Act, is the provision which defines 'unlawful assembly' and 'riot'. The section is headed– Unlawful assembly, "riot".

Section 63 is in these terms:

63. Unlawful assembly, "riot".

(1) Subject to Subsection (3), when three or more persons, with intent to carry out some common purpose—

(a) assemble in such a manner; or

(b) being assembled, conduct themselves in such a manner, as to cause persons in the neighbourhood to fear on reasonable grounds that they will—

(c) tumultuously disturb the peace; or

(d) by the assembly needlessly and without any

reasonable occasion provoke other persons tumultuously to disturb the peace, they are an unlawful assembly.

(2) It is immaterial that the original assembling was lawful if, being assembled, they conduct themselves with a common purpose in the manner referred to in Subsection (1).

(3) An assembly of three or more persons who assemble for the purpose of protecting the house of any one of them against persons threatening to break and enter the house in order to commit an indictable offence in it is not an unlawful assembly.

(4) When an unlawful assembly has begun to act in so tumultuous a manner as to disturb the peace, the assembly is called a riot, and the persons assembled are said to be riotously assembled.

This section was considered by Kidu C.J. in, The State v John Kosi, Arua Au, Laki Awaya and Vetali Maurava – N303. In that case, the bus drivers who had lost their jobs as a result of the Port Moresby bus service closing down decided to hold a procession to Waigani. They were in 20 buses led by the vehicle driven by the accused John Kosi with the other three accused. They were stopped by the police while on their way to Waigani because they did not have a permit for the procession. Words were exchanged between accused John Kosi and the police. At that time, a crowd gathered around them, some for the drivers and some against them. They were shouting.

His Honour in that case held that, in those circumstances, the accused could not be said to have incited the crowd which was shouting, and it did not constitute an unlawful assembly. His Honour stated the rationale behind his decision in this way:

"The assembly in this case was caused by the Police stopping the convoy. Although the buses in the convoy had their lights on and the drivers were beeping their horns, no other action is alleged against either the drivers or the accused. The argument between Kosi and Wardle does not constitute any element of unlawful assembly.

Here we have people proceeding in a convoy to Waigani being stopped by Police and as a result a crowd gathered. Apart from taking sides nothing else happened, except shouting and taking sides by the crowd. While this was going on it seems Inspector Jimu went around quite calmly it seems taking down particulars of the bus drivers. He gave no evidence of any fear that public peace would be disturbed.

Kosi did not incite any of the crowd to do anything or provoke disturbance of public peace. Apart from Wardle's evidence that the three accused talked to the crowd, there is no evidence they incited any of the crowd and it is not shown that by what they did it was likely or feared that public peace would be disturbed.

It is alleged that the common purpose was "to disobey instruction of the police". There is no evidence of this and I find no facts from which to draw any such inference. It is, however, clear that the common purpose was to go to Waigani and demonstrate in front of the Prime Minister's office about drivers losing their jobs and of the bus company ceasing operation. People have the right to demonstrate peacefully and in my view this was happening when the convoy was stopped. Accused and others might have breached traffic laws but this consideration is irrelevant for the purpose of deciding whether there was an unlawful assembly at Taurama Road". (our underlining).

The case of The State v John Kosi, Arua Au, Laki Awaya and Vetali Maurava (supra), is clearly distinguishable from the instant case. In the instant case, there is cogent and clear evidence that Hon. Michael Nali led the crowd, which was rowdy and which disturbed public peace. The crowd supported Mr Luta and were demanding that the Returning Officer declare Mr Luta as the winner, despite the Returning Officer ruling that he would count the 3 disputed boxes. They threatened violence if the 3 boxes were counted. Those in the counting room were fearful of their lives, because the situation was very tense. Some people in the crowd were trying to break the perimeter fence, thus creating fear.

There was clearly nothing like that in, The State v John Kosi, Arua Aua, Laki Awaya and Vetali Maurava (supra). In the instant case, the evidence by the prosecution witnesses of demands by Hon. Michael Nali and Mr Luta and his supporters to stop the counting and to declare Mr Luta as the winner; and the threats of violence are very clear and strong and we have no reason to disbelieve them. Thus we accept them as true.

Consequently, we find that the assembly in which Hon. Michael Nali took part was an unlawful assembly. We also find that Hon. Michael Nali and Mr Luta were clearly interfering with the electoral process and in the lawful duties and functions of the Returning Officer.

Under ss 19 and 175 of the Organic Law on National and Local Level Government Elections, only the Returning Officer had the power to decide whether the disputed boxes should be counted or not and he was the only person empowered to decide whether a declaration should be made.

In the circumstances, we find the conducts of Hon. Michael Nali clearly amounted to misconduct in office. In this regard, we stress that the responsibilities imposed on the leaders by s27 of the Constitution are high, thus the leaders who enjoy positions of high honour and authority are expected by the people through the Constitution to behave appropriately and conduct themselves with propriety and integrity. In this case, Hon. Michael Nali's conducts breached those high responsibilities and standards of conduct.

Thus, applying the standard of proof as stated in In re James Mopio (supra), we are reasonably satisfied that Hon. Michael Nali is guilty on the first charge. We therefore find him guilt as charged.

Allegation 2

Did Hon. Michael Nali on 27 and 28 March, 1999, fail to conduct himself in the manner required by s27 (1) and (2) of Constitution, by wilfully interrupting, obstructing and disturbing election proceedings for the Kagua-Erave open electorate and simultaneously, while in a public place, stripped of his outer clothing and continued to interrupt, obstruct and disturb the election proceedings while wearing only his underwear in a manner unbecoming of a national leader, an act which was contrary to s. 108 of the Criminal Code Act?

Section 108 of the Criminal Code Act, is in these terms:

108 Interference at elections.

(1) A person who—

(a) intrudes into a polling-booth, not being lawfully entitled to be in it; or

(b) wilfully interrupts, obstructs, or disturbs, any proceedings at an election, is guilty of a misdemeanour. Penalty: Imprisonment for a term not exceeding three years.

(2) A person found committing an offence against Subsection (1) may be arrested without warrant by direction of the presiding officer.

Again all the prosecution witnesses each told the Tribunal that in the evening of 27th March, 1999, Hon. Michael Nali demanded that the counting be stopped and Mr Luta be declared as the winner. They again corroborated each other on that point.

Although, Hon. Michael Nali denied speaking to the Returning Officer in the counting room, all the prosecution witnesses including Mr Temane told the Tribunal that, he spoke to the Returning Officer and told him to stop the counting. At that time, the Returning Officer and the Provincial Police Commander were sitting side by side, and because of those demands by Hon. Michael Nali on the Returning Officer, the Provincial Police Commander advised the Returning Officer to suspend the counting, which he did.

Again we find the prosecution evidence on this point clear, strong and convincing and we accept it. Thus we find the conduct of Hon. Michael Nali as a clear interference in the election process. We do not believe his evidence that he was invited into the counting room by the Returning Officer and the Provincial Police Commander.

We accept the prosecution evidence that he was allowed into the counting room by the Returning Officer because of his continuous demands to see the Returning Officer and as a result of fear by the Returning Officer of possible violence on the electoral officials including himself, if he did not allow him into the counting room.

In our view, there is no reason for the prosecution witnesses to fabricate their evidence before the Tribunal. We therefore accept their evidence totally.

Hon. Michael Nali was in his underpants only when he entered the counting room. In order to be sure about the type of underpants he was wearing, the Tribunal made sketches of two types of underpants, one is that which is normally worn by men with a 'V' shape and the other is one which has legs as described earlier. Hon. Michael Nali said, the underpants he wore was the second type with legs.

All the prosecution witnesses however said it was the first type with a 'V' shape, a normal underpants. Again all the prosecution witnesses corroborated each other on this point and we have no reason to disbelieve them. We find their evidence convincing, we therefore accept it. We do not believe Hon. Michael's evidence on the point.

Hon. Michael Nali said, the reason why he stripped to his underpants was to calm the rowdy crowd outside the gate and to quell the tense situation. He said it was customary in his area to do that as a leader. There is evidence that those who were inside the counting room were shocked by his dressing, and the prosecution witnesses described his dressing as offensive, inappropriate and that it amounted to indecent exposure.

Indeed, the Provincial Police Commander instructed his Police Station Commander to arrest him for indecent exposure later in the evening but, fearing that it may trigger further problems, the instructions were withdrawn.

We consider Hon. Michael Nali's conduct in this regard inappropriate and irresponsible and was unbecoming of a leader. In our view, his explanations for stripping to his underpants do not stand to reason in that, if he was applying his traditional methods of calming a rowdy crowd, what was the relevance in going into the counting room where the electoral officials were conducting election proceedings? Further more, why go into the counting room when the crowd he was trying to calm was outside the gate? We can see no justification in him entering the counting room wearing only underpants.

In any case, the evidence from the prosecution witnesses is that the crowd outside was still yelling and shouting even after Hon. Michael Nali had stripped and while he was inside the counting room. The crowd quietened down and dispersed only after the Returning Officer decided to suspend the counting until the next morning as a result of the insistence by Hon. Michael Nali to stop the counting. So his stripping to his underpants did not calm the crowd nor did it quell the situation.

Also when we look at the Post Courier reports by Mr Temane and the Statutory Declaration made by the Returning Officer, they say the reason why Hon. Michael Nali stripped to his underpants was to protest against the decision by the Returning Officer to count the 3 disputed boxes. They say, he protested outside the gate and inside the counting room, and Mr Luta did the same. Thus Hon. Michael Nali stripping to his underpants had no customary significance and it was not done for the purposes of calming the crowd.

The Post Courier reports which are Exhibits 'D' and 'E' are consistent with the Returning Officer's Statutory Declaration, which is Exhibit 'A'. They agree with the verbal evidence given by the prosecution witnesses.

In this regard, it is significant to note also that the Returning Officer in his Statutory Declaration said that, when Honourable Michael Nali and Mr Luta were inside the counting room with only their underpants, and after he had announced his decision to count the 3 disputed boxes, Hon. Michael Nali protested by saying, if the 3 boxes were counted, it would be in breach of the Constitution. Mr Luta also protested by saying, that he had incurred a lot of expenses and if the 3 boxes were counted, there would be trouble. These are again consistent with the verbal evidence given by the prosecution witnesses.

It is noted further that in his letter of reply to the Ombudsman Commission's letter to him under s 20 (3) of the Organic Law, Hon. Michael Nali, only mentioned wearing a Nike type sportswear and a 'T" shirt. But the underpants that was produced before the Tribunal which Hon. Michael Nali said was the type he was wearing, cannot be described as a Nike type sports wear, because it is not a sportswear. He also made no mention in his letter about wearing such clothes to calm the crowd in a traditional way. We find the prosecution evidence logical and making sense. We cannot say the same of the evidence and explanations given by Hon. Michael Nali. The lack of logic and reason in the explanations given by Hon. Michael Nali for stripping to his underpants becomes obvious when one also sees the fact that, the crowd to which he was protesting comprised of people from outside of Mendi town, and indeed his own tribe.

His explanations and reason for stripping to his underpants could probably make some sense if he had protested to his own people from Mendi or to his own tribesmen.

Further more, the gatherings to which he made his protest were not traditional, especially the people who were in the counting room. They were electoral officials conducting election proceedings and they came from all parts of Papua New Guinea.

So, in the face of these factors, we are disposed to accepting the reasons given by the prosecution that Hon. Michael Nali stripped to his underpants to protest against the Returning Officer's decision to count the 3 disputed boxes, and not to calm the crowd and to quell the tense situation.

As to the events of the morning of 28 March, 1999, again we have no reason to disbelieve the Provincial Police Commander's evidence that Hon. Michael Nali went to his office on his own accord accompanied Mr Luta and Mr Tulapi and asked that a declaration be made without the 3 disputed boxes being counted.

Hon. Michael Nali said, he was asked by the Provincial Police Commander to go to his office and when in the office, the Provincial Police Commander told him about his concerns regarding the situations in Kagua. But according to the Provincial Police Commander, Hon. Michael Nali went with Mr Luta and Mr Tulapi and asked that the declaration be made but he told them that, it was up to the Electoral Commission and the Returning Officer.

We think, there is truth in the Provincial Police Commander's version because, soon after that, both Hon. Michael Nali and Mr Luta were seen present at the Mendi police station car park, where the declaration was made. This is also supported by the evidence from the other prosecution witnesses.

It is also consistent with the Statutory Declaration made by the Returning Officer where he said, on the morning of 28 March, 1999, he went to the Provincial Police Commander's office to continue the counting on the 3 boxes, and to discuss the events that took place in the previous evening with the Provincial Police Commander. He said, Hon. Michael Nali, Mr Luta and Mr Tulapi were also present in the Provincial Police Commander's office, and they demanded that the 3 boxes be not counted but he told them that it was not for them to tell him what to do and asked them to leave the office.

Again, we find the prosecution evidence logical and making sense on this point, because in the previous evening the Returning Officer had suspended the counting of the 3 boxes until the following morning on 28 March, 1999. We also find that, that also provides the reason why the three men were in the Provincial Police Commander's office that morning. We therefore accept the evidence given by the Returning Officer and the Provincial Police Commander.

From the foregoing, we are reasonably satisfied that the conducts of Hon. Michael Nali amounted to misconduct in office and is thus guilty on the second charge. We therefore find him guilty as charged.

Allegation 4

Did Hon. Michael Nali on 27 and 28 March, 1999, fail to conduct himself in the manner required by s 27 (1) and (2) of the Constitution, by using his official position during the election proceedings for the benefit of his associate, Mr Luta by demanding that the Returning Officer not to count the 3 disputed boxes, which resulted in Mr Luta being declared as the winner for Kauga-Erave open electorate by-election, a conduct which was contrary to s 5 (1) of the Organic Law?

We have found that Hon. Michael Nali on 27 and 28 March, 1999, demanded that Mr Luta be declared the winner without the 3 disputed boxes being counted. He made those demands in the presence of Mr Luta. In other words, they were together when he made those demands.

In the evening of 27 March, 1999, the two men went into the counting room with only underpants. But before that, Mr Luta who was leading the count demanded that he be declared the winner. Then when in the counting room, Hon. Michael Nali told the Returning Officer and those in the counting room, that, if the 3 disputed boxes were counted, democracy was finished. He also said the Returning Officer would be in breach of the Constitution if he counted the 3 boxes.

He himself told the Tribunal that, when the Provincial Police Commander did not go and see him at the front gate of the council chamber after he had asked several times to see him, he felt that he was not accorded the protocol he deserved as the Deputy Prime Minister of this Country. This to us clearly means that, he was doing all those things as a member of Parliament and the Southern Highlands Provincial Assembly as well as the Deputy Prime Minister.

In other words, he did those things in his capacity as a leader. We say the same in respect of his conduct on the morning on 28 March, 1999. Thus we are reasonably satisfied that, in both times, he used his official position for the benefit of Mr Luta, which was for Mr Luta to be declared as the winner of the Kagua-Erave open electorate by-election.

Hon. Michael Nali was not authorised by law to do such things.

But, could Mr Luta be said to be an associate of Hon. Michael Nali, within the meaning of s 5 (1) of the Organic Law? To better understand Subsection (1), it must be read together with Subsection (2). In other words, the provision has to be considered as a whole.

Section 5 of the Organic Law provides:

5. Use of office for personal benefit etc.

(1) A person to whom this Law applies who, except as specifically authorized by law, directly or indirectly asks for or accepts, on behalf of himself or an associate, any benefit in relation to any action (past, present or future) in the course of his duties, or in the course of or by reason of his official position, is guilty of misconduct in office.

(2) Subsection (1) extends to the case of a person to whom this Law applies who, except in the course of and for the purpose of his official duties or his official position, uses or allows his name or his official position to be used for the benefit of himself or any other person.

Hon. Michael Nali said he did not know Mr Luta until the evening of 27 March, 1999. Therefore for the purposes of s 5 of the Organic Law, his association with Mr Luta started in the evening of 27 March, 1999.

Section 1 of the Organic Law which is the definition section defines "associate" in this way:

"associate", in relation to a person to whom this Law applies, includes a member of his family or a relative, or a person (including an unincorporated profit-seeking organization) associated with him or with a member of his family or a relative;

And "benefit" is defined in this way:

"benefit" includes any gift, loan or service (whether or not it has a monetary value) and all other personal advantages and favours given beyond the normal standards of hospitality;

There is no issue in respect of the benefit Mr Luta received, which was being declared the winner of the Kagua-Erave open electorate by-election.

The issue as we said earlier is, was Mr Luta an associate of Hon. Michael Nali in order for Hon. Michael Nali to be caught by s 5 of the Organic Law.?

This issue has to be determined in the light and the context of the overall evidence as to their association from the evening of 27 March, 1999, to the morning of 28 March, 1999, when Mr Luta was declared the winner of the Kagua-Erave open electorate by-election.

It has been established that, in the evening of 27 March, 1999, they were together with the crowd outside the front gate of the council chamber. After some verbal communications between them, they went into the counting room wearing only underpants. There, they strongly demanded that counting be stopped and Mr Luta be declared as the winner there and then.

However, their attempts were frustrated when the Returning Officer suspended the counting till the next day. They then left the counting centre together with the crowd that was outside.

Then on the morning of 28 March, 1999, they went together with Mr Tulapi to the Provincial Police Commander's office and continued their demand that Mr Luta be declared the winner without further counting. Later that morning, they were seen together at the Mendi police station car park witnessing the declaration of Mr Luta as the winner of the Kagua-Erave open electorate by-election by the Returning Officer.

The word 'associate' is used variably as to its meaning depending on the circumstances of a particular case, but, we think the use of the word in this case must be given its ordinary meaning. For that, we turn to the meaning given to it by the Concise Oxford Dictionary 9th Edition. Among other definitions given there, we consider a number of them relevant in the circumstance of this case, for instance, the word 'associate' is defined as:

"............connect in mind, join or combine, make oneself a partner, declare oneself in agreement, combine for a common purpose........."

It can be seen from these definitions that the fact that Hon. Michael Nali and Mr Luta may have met for the first time in the evening of 27 March, 1999, and therefore had no past association with each other prior to that date, is immaterial. What is material is that, by their conducts in the evening of 27 March, 1999, and the morning of 28 March, 1999, there was a bond between them which was formed by their association with the common purpose and objective of stopping any further counting and have Mr Luta declared as the winner of the Kagua-Erave open electorate by-election. They pursued that common objective from the evening of 27 March, 1999, until the morning of 28 March, 1999, when Mr Luta was eventually declared the winner.

In our view, the fact that their association may have lasted for only a brief period is also immaterial.

The use of the word 'associate' in its past tense viz. 'associated' in s1 of the Organic Law, in our view does not mean that Mr Luta had to be associated with Hon. Michael Nali prior to 27 and 28 March, 1999. The use of the word in its past tense is there because the Tribunal naturally has to consider such association after it has taken place as is the case here. We are therefore satisfied that Mr Luta was an associate of Hon. Michael Nali for the purposes of s 5 of the Organic Law.

Finally, we make two observations in respect of the submissions made by the counsel for Hon. Michael Nali on two aspects of the case. First is in respect of the way this charge is drafted. He argued that the charge should be dismissed because, it was not properly drafted and that, it does not plead the offence or the elements of the offence under the Leadership Code, particularly under s 5 (1) of the Organic Law.

As we have said earlier in the judgement, s 5 (1) has to be read together with Subsection (2). When read that way, we can find no error in the way this charge was drafted or pleaded. The charge in our view contains all the necessary elements under the section. The argument must therefore fail.

The other is that, Hon. Michael Nali was never cross-examined by the prosecution on the crucial parts of his evidence, therefore the Tribunal should not make any adverse findings against him on such evidence. For this argument, reliance was placed on a number of cases including; The State v Manasseh Voeto [1978] PNGLR 119, The State v Ogadi Minjipa [1977] PNGLR 293, The State v Saka Varimo [1978] PNGLR 62, they all state the principle applied in Browne v Dunn [1894] 6R 67 H.L. We are unable to agree with this submission for the reason that, we are able to make findings of facts and draw necessary inferences as we have done.

In the result, we are reasonably satisfied that Hon. Michael Nali's conducts amounted to misconduct in office and is therefore guilty on this charge. We therefore find him guilty as charged.

PATRICK MONOULUK SM: I have read the majority judgment on Allegations #01 and #02 and I say while I do agree with their views on Allegations #01 and #02, I am not satisfied that there is sufficient evidence against the Leader under Allegation #04. I say this because of the following:

A. "associate".

There is no evidence that may convince me that Mr Charles Miru Luta was an associate of the Leader. An 'associate' is defined in Section 1 of the Organic Law on the Duties and Responsibilities of Leadership (ORDRL) as follows:

"associate", in relation to a person to whom this Law applies, includes a member of his family or a relative, or a person (including an unincorporated profit-seeking organisation) associated with him or with a member of his family or a relative (emphasis mine).

For a person to be seen as an associate there must be evidence of past relationship between that person and the Leader concerned and that relationship must still exist at the time of the alleged misconduct against the Leader. There is no evidence that the Leader has had some past relationship with Mr Luta in any form or manner. There is also no evidence of a relationship thereafter that may give me the benefit to infer the possibility of an existing relationship between the two prior to 27 – 28 March, 1999.

The evidence obtained from the prosecution witnesses and the Leader himself during examinations in chief and cross-examinations were not sufficient for me to see as tying-in the Leader to Mr Luta. All the prosecution witnesses were able to say was that they saw the Leader and Mr Luta together outside the perimeter fence of the counting centre and inside the counting centre on the evening of the 27 March, 1999, and also in the morning of the 28 March, 1999, at Mr Kauba's office. All of them also admitted that the Leader at that time was a Peoples Progress Party (PPP) member and Mr Luta was an Independent candidate who later joined the Peoples Democratic Movement (PDM) after being declared the winner in that By-election. Apart from that there was nothing.

May I say that the standard of prove in a leadership tribunal is for a tribunal to act judicially and be 'reasonably satisfied' for obvious reasons. That level-of-proof is not as high as that in criminal cases but is certainly higher than the required standard in civil cases, Re: Mopio [1981] PNGLR 416 p. 421. While I appreciate that a Tribunal can make inferences from available evidence, I say that the evidence itself must be such that any inference from it must be reasonable. In this case the prosecution evidence does not give me that benefit to do so.

It may be argued that because the Leader and Mr Luta had a common purpose that alone may be sufficient to classify Mr Luta as the Leader's associate. I disagree with that theory. Such a relationship is temporary in nature and usually ceases immediately after the purpose (whatever it may be) is achieved. It is clear from the definition of the word 'associate', particularly the term 'associated' (as seen above) that first there must have been an existing relationship prior to the alleged misconduct. In the absence of that Mr Luta cannot be seen as an associate of the Leader.

Even if there is sufficient evidence to show that Mr Luta was an associate to the Leader, it appears to me that this particular misconduct charge against the Leader is ill conceived. I say this because Section 5 of the OLDRL, as stated by Mr. David Cannings (below), is a provision that addresses the corruptive behaviour of leaders who ask for or receive unauthorised benefits in the course of their duties or by reason of their positions. Section 5 (1) is in these terms:

Section 5 Use of office for personal benefit, etc.

(1) A person to whom this Law applies who, except as specifically authorised by law, directly or indirectly asks for or accepts, on behalf of himself or an associate, any benefit in relation to any action (past, present or future) in the course of his duties, or in the course of or by reason of his official position, is guilty of misconduct n office (emphasis mine).

B. "except as specifically authorised by law".

This phrase "except as specifically authorised by law" implies that anyone can ask or receive benefits but where a leader does so for himself or for his associate in the course of his duties or by reason of his official position he must first be authorised by some other laws for obvious moral and legal reasons. In applying this to the situation at hand we must ask ourselves can anyone be allowed to dress in his underpants and intimidate electoral officials in order to stop an election process? The answer is no. What about a leader, can he be dressed in his underpants and do the same to election officers. The answer once again is no. Is there a law available that may specifically authorise him to do so? The answer is no.

Section 5 (1) makes it clear that there is nothing wrong for a leader to obtain benefits but before he does so he must first be authorised by law. Section 5 (1) does not apply to the current situation because no matter what happens, no law will ever specifically authorise a leader or anyone else for that matter to interfere with a legally valid election process under any circumstance.

Section 5 (1) clearly refers to a situation where a Leader who acts within the law and in the process solicits benefits that are not authorised by law. This is a totally different situation to the case at hand because here we have the Leader as the Member for Mendi in his underpants and threatened and intimidated election officials who were doing their lawful duties. He was acting outside the law in the first place unlike the scenario envisaged by Section 5 (1).

C. "ask for or accepts".

It is very clear from the evidence that the Leader through intimidation and threats demanded Mr Yapen and his officers to stop the election counting process prematurely and went on to demand an early declaration of the winner. At no time did he ask for the counting to stop or accept Mr Yapen's offer to stop the counting. It was through the leader's threats and persistent demands that Mr Yapen submitted reluctantly.

At this point may I refer to an article by Mr David Cannings titled "The Ten Commandments of the Leadership Code and How the Integrity Law adds to them", Law Tok, p. 13-14 (2000). I am interested in the 1st Commandment and the 3rd Commandment. The 1st Commandment is titled Integrity and is framed under Section 27 of the Constitution. The 3rd Commandment is titled Unauthorised Benefits and is framed under Section 5 of the OLDRL.

I am impressed with this article because Mr. Cannings clearly and concisely discussed the relevant provisions of the Constitution and the OLDRL. He also went on to give examples of Leadership cases where other Leaders have been charged under these two respective laws.

For instance, under the 1st Commandment Mr. Cannings discussed what is required from a Leader in order to maintain his integrity and that of the government. There were many cases he referred to but the ones that interest me most are the cases of Timothy Bonga, Peter Garong and Melchior Pep. These Leaders during their time had made financial and personal demands to the then Prime Minister taking advantage of the looming vote of no-confidence against the Prime Minister. Consequently they were charged under section 27 of the Constitution and found guilty by respective leadership tribunals 'for endangering the confidence in the integrity of the government', as Mr. Cannings puts it.

In relation to the 3rd Commandment, Mr Cannings made it clear that under section 5 (1) the Leader, amongst others, cannot corruptly ask for or receive any benefit that is not authorised by law in the course of his duties or by reason of his official position without first seeking approval from the Ombudsman Commission. This contention finds support in the Andrew Kumbakor Leadership Tribunal of May, 2003 (N2363) at p.15 where the Tribunal in dismissing a charge under Section 5 (1) against the Leader unanimously agreed and said:

"This provision applies to leaders who receive additional side benefits as reward for performing his official duties as a Leader for which he is receiving a salary and allowances from the State" (sic)

This further re-affirms Mr Cannings belief as to what Section 5 (1) seeks to address. The examples Mr Cannings gave in support are as follows:

a. Tony Ila (1992) asked and received from the then Prime Minister K50,000.00.

b. Gabriel Dusava (1996) sought and received K65,000.00 from the Department of Foreign Affairs.

c. John Wakon (2000) asked and received motor vehicle allowances from the Police Department.

These are classic cases that fit well into Section 5 (1) of the OLDRL. Unlike the cases in the 1st Commandment, these leaders at no stage threatened or made demands to get benefits. They simply used their respective positions and asked and the unauthorised benefits were given to them. They did not demand as were the cases under the 1st Commandment.

In the present case the Leader was dressed in his underpants only and went about threatening, harassing and demanding that counting be stopped in the evening of the 27 March, 1999, and continued his action the following day. This behaviour by the Leader on these two occasions clearly demeans his office and the position he holds as the Member for Mendi and obviously calls into question his official and personal integrity.

I see his behaviour as also endangering the respect and confidence in the integrity of the government and certainly may have given rise to doubts in the minds of the public as to whether he was carrying out his official duties as a Leader.

There was no evidence he asked for the counting to stop or accepted Mr. Yapen's offer to stop the counting. What is obvious however is that the premature stop to the counting and the declaration were achieved through threats and demands thus the Leader should have been charged under section 27 of the Constitution just like Timothy Bonga, Peter Garong and Melchior Pep.

C. "benefit".

The term 'benefit' is defined under the OLDRL as follows:

"benefit" includes any gift, loan or service (whether or not it has a monetary value) and all other personal advantages and favours given beyond the normal standards of hospitality.

To be a 'benefit' as defined above it must be something given to the beneficiary 'beyond the normal standards of hospitality' – something that is over and above the reasonable standard of hospitality. It must be given freely without any direct or indirect compulsion on the part of the beneficiary.

Anyone who gives away a benefit because of some kind of threat or intimidation cannot be seen as acting in a state of hospitality towards the receiver of that benefit.

In this case Mr. Yapen's actions that culminated into the election declaration and his immediate departure to Mt. Hagen came about as direct consequences of threats and intimidation and therefore cannot be said that he had acted 'beyond the normal standard of hospitality' towards the Leader by stopping the counting and making an early declaration.

E. "By reason of his official position".

This phrase as stated under Section 5 (1) refers to a Leader who obtains benefit by reason of his official position.

There is no evidence that the Leader may have used his position as the Member for Mendi to stop the counting and forced an early declaration of the winner. What is apparent however is that the Leader used threats, intimidation and crowd support to stop the counting. The Leader's position and status made no difference to Mr Yapen in the evening of 27 March, 1999. That can be seen from the evidence that despite the Leader's position and demands Mr Yapen did not allow him into the counting centre.

The Leader was only allowed into the centre based on security considerations and for no other reasons and whilst in the centre the Leader resorted to threats and intimidation with the backing of a very vocal crowd to force the suspension of the counting that evening.

The following morning there was no improvement on the situation thus Mr Yapen had to seek direction from Port Moresby before deciding to stop counting altogether. At no time the Leader's position influenced Mr Yapen into submitting. May I make it clear that the stopping of the counting and the early declaration were done based on security considerations.

May I point out also that neither can the prosecution find any help from section 5 (2) of the OLDRL. I believe this provision refers to instances where a leader allows his name or position to be used by a third party to solicit benefits. For instance a leader who uses his office letterhead seeking personal bank loan or acts as a referee for a friend. The difference here is that section 5 (1) of the OLDRL refers to a leader who solicits benefits whilst on duty while Section 5 (2) refers to a leader who solicits benefits whilst off duty.

F. Conclusion.

There is no evidence that Mr. Luta was the Leader's associate. I am not prepared to make any inference that is not adequately supported by evidence bearing in mind the need for the tribunal to be 'reasonably satisfied'. Section 5 of the OLDRL is not the appropriate provision to have the Leader charged taking into account the facts behind the Leader's conduct. This particular provision together with Sections 11 and 12 of the OLDRL, as stated by Mr. Cannings, cater for corruption in office by leaders in receiving unauthorised benefits. All that can be said of the Leader was that his behaviour and conduct in the evening of 27 and the morning of 28 March, 1999, not only demeaned his integrity and that of the government but also brought doubts in the minds of the public as to whether he was carrying out his official duties thus the relevant provision is section 27 of the Constitution which I believe was adequately covered by Allegation #02.

Based on all these considerations I reiterate that allegation #04 is ill conceived and therefore acquit the Leader on this allegation.

The Orders of the Tribunal are as follows: -

1. We find Honourable Michael Nali guilty on charges 1, 2 and 4.

2. We find Honourable Michael Nali not guilty on charge 3.

Lawyers for Prosecution: The Public Prosecutor.
Lawyers for the Leader: Maladina Lawyers.