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In re Michael Somare; Recomendation on penalty [2011] PGLT 1; N4230 (24 March 2011)

N4230(LT)

PAPUA NEW GUINEA
[IN THE LEADERSHIP TRIBUNAL]

LT 1 OF 2010
DECISION AS TO RECEOMMENDATION ON PENALTY AND REASONS THE HON. ROGER GYLES AND THE HON. SIR BRUCE ROBERTSON

SECTION 1

Introduction

1. Having found Grand Chief Sir Michael Somare GLC GCMG CH CF KtJ, MP (the Leaders) guilty of 13 allegations, we are required under the statutory framework to made a recommendation as to penalty to the Head of State, His Excellency the Governor General.

2. Under s 27(5) of the Organic Law on Leadership it is mandatory for us to recommend that:

(a) he be dismissed from office or position or

(b) as permitted by s28(1)(A)(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.

3. Section 28(1A) of the Constitution says;

"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".

4. The relevant Organic Law is the provisions of s2 of the Leadership Code (Alternative Penalties), Act which provides the penalties which may be recommended and imposed in these circumstances which are:

(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 lll.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.

5. It was common ground before us that the effect of this Section 28(1A) was authoritatively enunciated by Amet, J (as he then was) in Peter Ipu Peipul v. Hon Justice Sheehan, Orim Karapo & Iovai Geita & Ors, (2002) SC 706 at 26.

"I am prepared to accept the proposition that s28(1)(g) does imply that in all findings of guilty of misconduct in office the Tribunal starts with the Primary premises that it shall recommend dismissal from the office unless pursuant to s28(1A), (a) and (b) it found that there was no serious culpability and that public policy and public good do not require dismissal."

6. The Evidence to be evaluated in addressing these 2 factors is all the material that was led at the liability hearing (including the suspension application) together with 10 references tendered at the resumed hearing.

7. These references were from:

Fr. Jam Czuba, President of the Divine Word University

Dame Carol Kidu, Minister of Community Development

Sir Peter Barter, Former Minister and State Governor

Winnie Kiap, Former Secretary to the National Executive Council

Sir Isi Kevau, Executive Dean and Professor of Medicine at the School of Medicine & Health Sciences at the University of Papua New Guinea to the United Nations Organization

Peter Botten, Managing Director of Oil Search Limited

Sir Rabbie Namaliu, Former Prime Minister

Fr. John Momis, President to Autonomous Bougainville Government

Margaret Elias, Secretary to the Department of Prime Minister and National Executive Council

8. Although the relevant provisions involve objective assessment, the subjective attitude and approach of the Leader is a factor to be evaluated. The Leader has always said that he was not trying to avoid his duty under the Leadership Code but other matters were given priority. This frame of mind was confirmed by Mr. Blake and is consistent with the character revealed in the very laudatory and supportive references provided to us.

9. Under the constitutional framework we must first determine whether there was " no serious culpability" on the part of the Leader in respect of the allegations upon which we found him guilty.

SECTION 2

No Serious Culpability

10. Misconduct in office is defined in s27 of the Constitution (which is entitled Responsibilities of Office) and by all of Part II of the Organic Law on Leadership (which is entitled "Responsibilities of Leadership") namely ss4 to 16 inclusive. Sections 23 and 25 in later parts of that Law also provide for forms of misconduct in office. These provisions cast a wide net. Most prohibit conduct which is corrupt, lacking in integrity or places a leader in a position of conflict between duty and interest.

11. Section 4 of the Organic Law on Leadership does not deal with such matters directly. As we said in the Decision on Guilt (21st March 2011) at para 2.5.

"the provision of timely statements is a fundamental plank in ensuring that a person carries out his public duties as a leader with integrity."

It is an important machinery provision ancillary to those actually prohibiting substantive misconduct in office.

12. It is easy to fall into the trap of thinking that, as all misconduct in office by a leader can properly be described as serious – including the breach of an ancillary provision such as s4, it follows that all perpetrators are seriously culpable. However, s28 (1A) of the Constitution recognizes that there will be situations in which a person who has been found guilty of misconduct in office will not be seriously culpable. In other words, conviction of what may be described as the serious offence of misconduct in office of itself does not establish serious culpability on the part of the person found guilty.

13. The range of penalties provided by the Leadership Code (Alternative Penalties) Act and the value of the maximum fine when introduced in 1976 show that the conduct to be penalized other than by dismissal was not intended to be limited to the trivial.

14. "Culpability" has its roots in the Latin word for guilt. The concept of "Culpability" is familiar in sentencing. It has the connotation of blame-worthiness (The State v. Koma and Kevin [1987] PNGLR 262 at 263; The State v. Joseph Nimanji [2002] in 2312 at [26]-[31] cited with approval in Sinawi v. State [2010] PGSC 31; SC 1076 (29 September 2010); and the State v. Mongi [2007] PGNC 135; in 3259 (12 December 2007) at [77] – [78]).

15. This understanding of culpability has been applied consistently by Leadership Tribunals (e.g. Re Peter Yama [2004] N2746 (1 December 2004) per Hinchliffe J at 11, Manuhu SM and Monouluk SM at 24-25; re John Nilkare (2 July 1996) at 52; re Michael Nali (No3) (2003) N2399 at 14; re Peter Ipatas (2006) N3078 (penalty) at 7; re Andrew Bain (penalty) (20 December 2006 at 9.

16. In Reg v. Peter Ivoro [1971-72] PNGLR 374 Frost ACJ and Kelly J said at 381, in relation to the statutory phrase "extenuating circumstances" in s305 of the then Criminal Code Amendment (Papua) ordinance 1965;

"The Shorter Oxford English Dictionary defines the term as "circumstances that tend to diminish culpability". The legislature has not been fit to define the term and we do not consider that this Court should essay this task. The concept, however, is certainly quite clear – the existence of some relevant circumstances which operate so as to diminish the culpability of the prisoner, not in the strict legal sense but broadly, regard being had not only to moral considerations but to all the considerations which might reasonably be taken into account in order to determine whether it would not be just that the law should be applied in its full rigour..."

17. Assessment of serious culpability is a comparative rather than an absolute exercise – it is a question of degree. This is confirmed by a study of the Supreme Court decisions in re Nilkare (1997) SC 536; particularly per Amet CJ and Los J on Penalty at pages 2-6 and Peipul v. Sheehan and Ors (2002) SC706 particularly per Amet CJ at 28-31; Los J at 57 and Injia, J at 61-69.

18. As we said in the Decision on Guilt (re Sir Michael Somare (2011) (N4224) at para. 5.2, the culpability of the leader must be judged having in mind the totality of that which was proved.

19. A factor to be considered is a comparison between the proven instances of misconduct in office and the range of other conduct that might be found to be misconduct in office pursuant to the Constitution and the Organic Law on Leadership. These breaches of s4 by failure to file timely and complete statements are well below instances involving corruption, conduct lacking integrity and actual dishonesty on any scale of seriousness.

20. Furthermore, the breaches of s4 which have been found relate to late and incomplete statements but not false or misleading statements. Having had the benefit of the statements, such as they were, and with its power and duty to investigate, the Ombudsman Commission does not allege that the reason for the delay or incompleteness was to avoid revealing the existence of an asset or income that may not have been properly obtained or the incurring of a liability indicating a conflict of interest or improper association. In short, there is no suggestion of dishonest intent.

21. Other factors to be considered include the circumstances surrounding the offences and the connection of the Leader with them. The facts as to the incomplete statements are set out in Part 8 of the Tribunal's Decision on Guilt. The first gap was the amounts of salary. The Leader's salary in public office was always a matter of the public record. Whilst this does not excuse the omission of any details, it would have had little effect in practice. There was evidence from both the Leader and his accountant. Mr. Blake that it was difficult to obtain records of income and salary from the public authorities. That appeared unlikely at first glance, but there was no cross examination on the point and no evidence led to rebut it. The other gap was particulars of some bank accounts. A change of bank was said to have caused difficulties in obtaining particulars of the bank accounts. This was not challenged. There is no evidence that the failure to give the particulars of the bank accounts was of any practical significance particularly as the Ombudsman Commission had ample powers of the scrutiny and investigation and a duty to exercise them where appropriate. The Commission had the benefit of proper records in later years. However, giving full weight to these matters, the failure to produce any relevant particulars of these matters is indicative of a lack of diligence by the Leader and his staff.

22. The facts concerning the delays in provision of statements have been set out in Part 7 of the Tribunal's Decision on Guilt. The delays can only be described as considerable and giving the statements required considerable prodding from the Ombudsman Commission. That prodding was somewhat spasmodic. Both sides lacked urgency. This is not a case where the failure to lodge on time can be seen as an attempt to avoid disclosing unpalatable facts.

23. The Leader's evidence is that the delay in lodging the annual returns was attributable to the responsibilities of Public business including travel within Papua New Guinea and overseas. That cause him to engage Mr. Blake in 2000 to prepare the returns for 1997/1998 and 1998/1999. The substance of the evidence of the Leader and Mr. Blake is to be found in the Tribunal Decision on Guilt. There is no doubt that the result was quite unsatisfactory. However, as submitted by Mr. Molloy, the evidence does not support a finding that the Prime Minister did not intend to lodge the statements or deliberately avoided the filing of complete statements for some dishonest purpose. In judging the bona fides of the leaders in this respect we have regard to the evidence as to an unblemished record of public service by the Leaders. It is unlikely that a person of that character would deliberately seek to avoid his responsibility to give statements to the Ombudsman Commission.

24. Nonetheless, he did not take that responsibility as seriously as he ought to have done. He did not give the priority that he ought to have to giving timely and complete statements to the Ombudsman Commission. As a consequence, the misconduct in office occurred.

25. Taken overall, comparing his conduct with other potential forms of misconduct in office and other possible breaches of s4 of the Organic Law on Leadership, we assess that there was no serious culpability on the part of the Leader in connection with the misconduct in office of which he has been found guilty taking into consideration the circumstances that properly extenuate culpability.

26. Mr. Kaluwin for the Public Prosecutor initially submitted that there was no serious culpability on the part of the Leader based upon what had occurred in other cases. Later, under some pressure, he appeared to change his position, and submitted that the Leader's special position as Prime Minister made all the difference and tipped the balance in favour of serious culpability.

27. As will appear, we agree with his assessment of the result of comparison with other cases. We do not agree with his assessment that being Prime Minister should have such great weight in assessing the seriousness of the culpability of the Leader for the purposes of s28(1A) of the Constitution in this case. The obligation to give statements applies to all leaders with equal force. Culpability is to be judged by considering the circumstances of the offence and the offender. The office held by an offender may be relevant on penalty in a normal sentencing exercise. The Tribunal is not engaged in that exercise at this point. "Culpability" does not sweep up all matters that might be relevant to penalty.

28. In any event, the Leader was not Prime Minister for the critical period of default. He was a Member of Parliament from 1992 onwards. He was appointed Minister for Mining and Bougainville Affairs in 1999, Leader of the Opposition in 2001 and Prime Minister in 2002. From 2000 his accountant was been placed in charge of sorting out the missing statements. That took place in January 2002. The accountant was responsible from then on.

29. Furthermore, holding the office of Prime Minister cuts both ways. The duties and responsibilities of that office exceed those of any other public office. There are many issues of an urgent and insistent nature to be juggled. That does not excuse the failure to give statements in a timely and complete fashion, but it assists in providing an explanation.

30. Counsel referred to the Tribunal to several Leadership Tribunal decisions dealing with breaches of s4 of the Organic Law on Leadership. There is limited value to be gained from the comparison with other cases. The Tribunal must make its own assessment of the seriousness of culpability on the facts of this case. That assessment is a matter of fact and degree – a judgment call. The facts of each case are different and different Tribunals may view circumstances differently.

31. That said, we have considered the decisions to which we were referred – Mr. Kaluwin cited re. Bonga (1996); re Peter Ipatas (2006) N3078; re Puka Temu (2006) N3099; and re Moses Sasakila – Reference 1 (1976). Mr. Molloy added re Melchior Pep (2007) N3134 and re Anderson Agiru (2002). We add re Sigulogo [1988-1989] PNGLR 384 and re Gallus Yumbui (2007) N4052. Having done so, a decision that the Leader was seriously culpable in this case would be out of line with the trend of pervious decisions.

SECTION 3

Public Policy and Public Good

32. Having determined that there was no serious culpability we are obliged to turn to the second plank in s28(1A)(b) namely whether public policy and the public good "do not require dismissal".

33. The Tribunal is entitled, and required, to consider the Leader's public record and his standing in the community as reflected in the evidence.

34. This Leader has until now an unblemished public record. He first served in the Pre-Independence House of Assembly in 1968 and then in the National Parliament where he was the Chief Minister at Independence, and then the Nation's first Prime Minister. He has served in that office several times and amongst others has been Opposition Leader, Minister for Foreign Affairs and Governor of East Sepik Province.

35. It has been a long and proud period of public service, recognized within Papua New Guinea, throughout the Pacific and internationally.

36. The offending which is the subject of the charges ceased in 2005. We are now dealing with acts and omissions which are historic and to an extent stale. Importantly, in the intervening period there has been the timely giving of complete statements as required under the Leadership Code.

37. We also place in the balance evidence as to disruption to national life and the costs involved in immediately recalling Parliament, which is in recess, to enable the election of a new Prime Minister, and in a by-election in East Sepik if the Leader was dismissed as a member of Parliament.

38. On the basis of the total available evidence we can properly conclude that public policy and the public good do not require the Leader's dismissal. He is entitled to point to 43 years as a Member of Parliament, his achievements and the regard in which he is held. There has been no suggestion of personal gain, abuse of position or undermining of public confidence in what was alleged and established before the Tribunal. The misconduct in office ceased in 2005 and he has complied with his allegations since.

SECTION 4

Alternative Penalties

39. Having satisfied ourselves that the two Constitutional requirements have been met, we are able to recommend a penalty other than dismissal of the Leader as provided in the alternative penalties regime set out in 1.4. We have to determine which of the alternative penalties should be recommended to the Head of State.

40. Neither counsel submitted that (e) and (f) (which involve salary reduction and demotion) have any application to this case so the Tribunal must assess and evaluate the alternatives (a) to (d). The word "or" is used so only one of them can be engaged.

41. The maximum fine which can be imposed under (a) is K1, 000. That has been the sum since the statute was enacted more than 35 years ago. Tribunals have frequently noted how the value of money had changed and what would then have been a substantial penalty is now a relatively small sum. A Tribunal must work within the law as enacted by Parliament, but this relatively nominal maximum creates substantial difficulties when trying to reflect proportionality in respect of the established level of culpability.

42. In light of the delays and changed circumstances (b) (which is about to bond to comply) is not appropriate and neither counsel urged its consideration.

43. Mr. Kaluwin did not mention suspension from office for a period without pay under (c). Mr. Molloy strenuously opposed suspension for the same reasons he advanced for avoiding suspension earlier in the proceeding. He relied upon the evidence of the Deputy Prime Minister filed at that stage. He referred to the coalition nature of the Leader's government and the important development works currently in progress. Counsel submitted that the public would suffer through disruption if there were suspension. He submitted that suspension would be disproportionate to the offences for the Leader and counter productive for the public. His earlier submissions on the adverse effect of dismissal are also applicable.

44. We note that in December 2010 the Leader voluntarily stood aside as Prime Minister for a month, for reasons connected with these proceedings. He will often have been on holidays or overseas for short periods. That suggests that a limited suspension need not clog the wheels of government or disrupt ongoing public activities.

45. The alternative of a reprimand under (d) would be little more than a formal reinforcement of the public exposure of the Leader's failure to give on time, and fully completed, annual statements over a span of more than 10 years.

46. Although we held that the timely giving of statements and the giving of incomplete statements did not come within the classification of serious culpability, no one should be under any illusion but that the omissions were matters of moment and deserving of and requiring a salutary response.

47. They are not to be viewed as mere clerical errors. What must be evaluated is the rationale for the regime which requires the annual financial statements.

48. To understand that, it is helpful to consider the concept of a Leadership Code as it emerged in the Final Report of the Constitutional Planning Committee produced in 1974. Among the passages to be found in that report are:

"Corruption is public life is, of course, a world wide problem which has reached very serious proportions in a substantial number of countries – developing and industrialized alike."

"We do not suggest that it will be easy to make the proposed Leadership Code fully effective. But we do believe that if the political will is behind it, it can be made a potent force in maintaining public confidence in our leaders at all levels."

"We intend the Leadership Code to be more than mere directives. It should be morally and legally binding on "leaders", and firmly enforced. It is for this reason that we have recommended that a particular, independent institution of government, the Ombudsman Commission (which in Chapter 11 we propose should be established) ought to have responsibility for overseeing the Code and seeing to it that leaders comply with its provisions."

"We believe most strongly, that the effectiveness of many of our proposals depends heavily on the acceptance of the Leadership Code which we propose."

"Our recommendation that each leader should disclose to the Ombudsman Commission various financial particulars concerning himself and his immediate family, each year, accords with our recommendation that the leadership Code should be enforceable. Unless leaders declare their assets, liabilities, and business activities, the Ombudsman Commission will not be in a position to know whether they are living up to what is expected of them."

49. Those aspirations and concerns came from a group of which this Leader was a member. The giving of regular financial statements was the mechanism by which information would be available to the Ombudsman to help in ensuring that corruption could be protected against. Every Leader upon initial election needs to give a statement of financial position and then update it every twelve months.

50. The inevitable conclusion from the evidence, is that for many years, this Leader did not give the attention or the priority which the law required to the timely filing of complete statements. There is no denying that he was busy, and at times held high office, but it was important that he, like every other leader, met his obligations to report regularly and fully, to help ensure that this country could be governed with integrity and free from corruption.

51. When a Tribunal is confronted with ongoing case of misconduct in office over many years, it is incumbent upon it, to mark in a significant way the breach of duty which was exposed.

52. We found that there was not serious culpability when that is assessed within the total context of acts or omissions which could constitute misconduct in the circumstances of the case. But that does not mean that the failures were not important.

53. With the passage of years, the maximum fine which we could impose namely K13,000.00 is quite inadequate to mark the failures, and to send a message to all other leaders, of the importance of their fulfilling their clear duties of disclosure in a timely way.

A reprimand alone, which was proposed by Mr. Molloy as an alternative to a fine, would be inadequate.

54. We have concluded that it is only by recommending a limited period of suspension from office as Prime Minister that the necessary message can be properly sent to all Leaders and the public. Other available alternatives are simply not sufficient to do that.

55. We have had careful regard to the evidence of the Deputy Prime Minister and the leader about the nature of the existing coalition government and the state of affairs which exist. We are not persuaded that limited suspension need create disorder.

56. Limited suspension ill be a proportionate response to the level of offending established, and a clear signal to all, that the Leadership Code, and the mechanism for enforcing it, are not mere words but solemn responsibilities. The position now is different that when we declined to suspend the Leader pending our determination of guilt. Thirteen allegations have been established. Furthermore, we can control the length of the recommended suspension from the office of Prime Minister.

57. It does not matter that the Leader was not the Prime Minister at the time of some of the offences. Re: Leadership Code, SCR. NO. 2 OF 1992; SC NO, 440 per Kidu, CJ, Amet, Los and Andrew JJ at c14;

58. Both counsels were of the view that we lack jurisdiction to make orders as to costs.

59. Accordingly we would recommend to the Head of State, His Excellency the Governor General, that the Leader be suspended from the office of Prime Minister without pay for a period of fourteen days from and including the 4th day of April 2011. He would remain a Member of Parliament.

Dated at Waigani this 24th day of March 2011

(Signed)

......................................................

The Honourable Roger Gyles AO QC

(Signed)

......................................................

The Honourable Sir Bruce Robertson

FINDING ON PENALTY
THE RIGHT HON SIR ROBIN AULD

Introduction

60. The combined effect of three statutory provisions, s 28(1)(g)(ii) of the Constitution, s 27(5) of the Organic Law on Leadership and s 2 of the Leadership Code (Alternative Penalties) Act is to require dismissal for misconduct in office unless the Tribunal finds "no serious culpability" on the part of the Leader and that "public policy and the public good do not require" his dismissal. If the Tribunal finds both those two matters, it may recommend one of a number of lesser penalties set in s 2 of the Leadership Code (Alternative Penalties) Act.

61. The first task for the Tribunal, therefore, is to determine whether its findings of misconduct in office, considered individually and/or in their totality, constitute serious culpability so as to require it to recommend the Governor General to dismiss the Leader, pursuant to section 27(5) if the Organic Law on Leadership. If it does not so find, it must go on to consider whether it can resort to any of the alternative penalties provided by section 28(1A) of the Constitution and section 2 of the Leadership Code (Alternative Penalties) Act.

62. In considering the law and its application on the threshold issue, whether the Leader's conduct constituted serious culpability, I keep in mind throughout that the Tribunal's findings of guilt involve no findings of dishonesty, corruption or other conflict of interest or of any attempted such conduct. The findings are of his failure to comply with his constitutional obligation, embodied in the Leadership Code, to provide timely and complete financial statements to the Ombudsman Commission.

63. The statutory regime for annual financial returns is not just a bureaucratic process to give public servants something to do. It is to protect the citizens of this country from possible abuse of public office by their political or other public leaders. The statutory intention is to deter and protect against such venality by strict operation and enforcement of the regime, and thereby also to reassure the public that the conduct of its affairs is in honest and otherwise good hands. If the system is not strictly observed and enforced, the public loses an important constitutional watchdog.

64. In 1974 the Constitutional Planning Committee, under the Chairmanship of the Leader, put all this in a clarion call for public probity in its Final Report, which gave rise to the Leadership Code in the Constitution and the Organic Law on Leadership. At the heart of its proposed scheme was a rigorously prescriptive and enforced set of reporting requirements. It was coupled with automatic dismissal for non-compliance, subject to extenuating circumstances for which section 28(1A) of the Constitution now provides. The following passages from the Committee's Report give a flavor of the high expectations it had for the conduct of its public officials:

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

15. We recognize that we leaders, like all other people, have our strengths and weaknesses. And it is with full awareness of our human frailties that we have concluded that clear rules, strictly enforced, are required to try to ensure the integrity of politicians at all levels and of other leaders...

16. Our proposals are designed to meet this need for positive action to be taken so that leaders will not be in position where their private interests conflict with their public responsibilities. ...

36. We believe, most strongly, that the effectiveness of our proposals depends heavily on the acceptance of the Leadership Code which we propose. The Code is among our most fundamental recommendations...

37. 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...

39. Annual Declaration – Our recommendation that each leader should disclose to the Ombudsman various financial particulars concerning himself and his immediate family, each year accords with out recommendation that the Leadership Code should be enforceable. Unless leaders declare t heir assets, liabilities and business activities, the Ombudsman Commission will not be in a position to know whether they are living up to what is expected of them. ..."

65. The Committee's recommendations and the provisions in the Constitution and the Organic Law of Leadership to which they gave rise give point to the requirement in section 28 (1) and (1A) Constitution to recommend dismissal for misconduct unless there is no serious culpability and public policy and good do not require it.

66. The difference between culpability and non-serious or "trivial culpability" (see Sasakila) is largely a matter of fact and degree considered in its legal context – nearly always a highly fact – sensitive issue. However, there are a few general propositions that assist.

67. The Statutory framework of Sections 27 and 28 of the Constitution, when read with section 4(6) of the Organic Law on Leadership, clearly contemplate that there may be seriously culpable misconduct in office under section 4(6) even if, as in this case, it does not involve allegations or reasoned suspicions of dishonest or other venality at which section 27 of the Constitution is directed.

68. Deterrence and prevention – The mischief at which those provisions are directed was well summarized by the Constitutional Planning Committee in the extract from paragraph 39 of its Report, set out above. It is to deter and prevent those in high public office from the temptation to abuse their power and influence of private gain. The Supreme Court has recognized the same goal of the legislation in a number of authorities. See SC Reference No. 1 of 1978 in Re Leo Morgan [1978] PNGLR 460 at 463-464, and re Joseph Auna [1980] PNGLR 500, at 504. As the Supreme Court put it in SC Reference 2 of 1992 [1992] PNGLR 336:

"[t]he entire thrust and primary purpose of the Leadership Code is to preserve the people of Papua New Guinea from improper and corrupt conduct by their leaders".

69. Application of s.28(1A) to section 4(6) offences – There is logic in the way those provisions allow for both serious and non-serious culpability in section 4(6) as well as in other m ore serious offences. Section 4, though not a medium for prosecution of financial and other dishonesty is a safeguard against such venality. See e.g. the decision of the Tribunal in Jim Kas, 27 October 2000. Thus, for a leader to delay the return of his financial statements for long periods and eventually provide them in incomplete form is as potentially as seriously culpable and effective a means of concealment for dishonest reasons as providing untrue or misleading information. The Ombudsman Commission may simply be left in the dark, sometimes for years, as happened here, where the Leader's statements were routinely so late and incomplete that they didn't even identify the banks in which he maintained accounts, still less the account numbers or the state or activity of the accounts. The recurrent incantation on his behalf that these section 4(6) offences are not of serious culpability because he has not been found guilty of or suspected of any offence of corruption or other dishonesty or other conduct under section 27 of the Constitution, is not to the point. The point is that, by his conduct in failing make timely and complete returns over a period of many years, neither the Ombudsman Commission nor anyone else with a public duty in the matter, knew what a true and complete account of his financial affairs would or might have revealed.

70. The higher the Office the higher the duty - The standard of compliance may be higher for Leaders of particular prominence and high responsibility than for other leaders, especially where, as here, the Leader is the Prime Minister and had a prominent role in formulating and establishing the Leadership Code. See e.g. Sasakila.

71. Beware "authorities" on the meaning of serious culpability – As already indicate, the decision to be made in each case is one of mixed law and fact or degree, but also coupled with large dollops of common – sense and doing justice to the plain meaning of language. Because the issue is so case-sensitive, it is generally unhelpful to look for a definitive answer in other decided cases. Generalizations expressed as ruling s in wholly different legal and/or factual contexts are positively dangerous; see e.g. Tribunal Reference in Nali 3 of 2003 N2399. Certainly, PNG jurisprudence on the point establishes no general principle as to the applicability or meaning of "serious culpability" in section 4(6) cases. At best it provides illustrations of different value –judgments on different facts. We are told by counsel that there is no reported case in which incompleteness of statements on its own has been regarded as sufficiently serious to require dismissal. However, as the reported authorities cited to the Tribunal show, there re occasions when section 4(6) offences have merited recommendations for dismissal and others not.

72. Previous good character irrelevant to seriousness of culpability - Good character and past and present works are not a basis for reducing what would otherwise be regarded as serious culpability to con-serious culpability. See e.g. Melchior Pep, 14 October 1992 and a number of other Tribunal authorities and, most recently, Re Jim Kas 27 September 2000, at 19-20. It follows that the many testimonials as to the Leader's good character and long and good service to the Nation cannot avail him on this issue. They would, no doubt, be relevant to the issue whether public policy and public good does not require dismissal, if it remains for determination.

Submissions

73. I turn briefly to the rival submissions in the Reference

74. Mr. Kaluwin's helpful written and oral submissions are that, on the particular facts of this case and looked at in its totality, the misconduct of the Leader is seriously culpable or, put another way, certainly not trivial. He stressed: 1) the high standard of compliance demanded by the Constitution from the Leader by virtue of his office; 2) his many years of failure to submit timely and complete financial statements; 3) the long periods of delay; 4) the absence of critical information in his statements about his financial status; 5) his persistent disregard of and failure to respond to repeated requests and warnings from the Ombudsman Commission about his non-compliance; and 6) his failure throughout to explain or apologize for all that misconduct. Those circumstances, submitted Mr. Kaluwin, make this case stand out from some of the others to which the Tribunal has been referred. They demonstrate a persistent and deliberate course of conduct by the highest office holder in the land in defiance of his obligations under the Leadership Code.

75. Mr. Ian Molloy, Leading Counsel for the Leader, in his equally helpful written and oral submissions, agreed that the Tribunal should look at the totality of its findings of misconduct, and that it should do so in the context of the full range of misconduct for which s 28(1)(a) of the Constitution and hence the Organic Law on Leadership provide.

76. However, Mr. Molloy moved quickly to the theme to which I have referred in paragraph 7(3) above, and which was to become a coda throughout his submissions, namely the distinction to be drawn between the misconduct that the Tribunal has found proved under section 4(6) of the Organic Law on Leadership and the more serious offences for which s27(1) of the Constitution and other sections of the Organic Law provide. In short, he suggested that, because there is no allegation or suggestion against the Leader of failing to make timely and complete reports for some dishonest reason, his misconduct must be look at in some difference and lesser light.

77. I have already, in paragraph 7(3) above, indicated the fallacy in that argument. The purpose of section 4(6) and the Leadership Code is to provide a safeguard against possible abuse by leaders in the form of dishonesty or other forms of venality of varying seriousness. Failure by a leader to make timely and complete returns deprives the Ombudsman, for the duration of the non-compliance, of the ability to determine for itself whether there is abuse or a possibility of abuse that requires investigation. The Tribunal, in Section 5.6 of its unanimous Findings on Liability, when distinguishing between the functions of sections 27 of the Constitution and Section 4 of the Organic Law on Leadership, expressed the same view:

"Section 27 of the Constitution deals with conduct which lacks integrity. Section 4 of the Organic Law on Leadership requires provision to the Ombudsman Commission or regular timely and accurate financial statements as a means of prevention and detection of conduct lacking in integrity."

78. Thus, in the absence of the required returns, the Ombudsman Commission simply did not know all that it needed to know about the Leader's affairs at the time it needed to know them. And, in respect of those that were also incomplete, it still does not know (save possibly in respect of the "new" returns prepared by Mr. Blake for 1996 – 1997). As I have said, failure to provide timely and complete annual financial statements can be as effective a way of dishonest concealment of assets or income as making positively dishonest or misleading returns. The Commission's ignorance of the Leader's affairs over the material years resulting from his non-compliance aggravates rather than mitigates the seriousness of his culpability.

79. Mr. Molloy's third and main submission was that the leader did his best, but that the heavy pressures of his high office left him little time to attend to his Leadership Code obligations. To overcome that, the leader engaged the assistance of Mr. Blake from 2000. There are two counter-arguments to those pleas in mitigation. First, as the Ombudsman Commission stated in paragraph 134 of its Observations on its Statement of Reasons, in his high position he had and should have employed the resources available to him for the task. Secondly, even when, in 2000, he engaged Mr. Blake to assist him, the delays and the incompleteness continued, largely it seems from Mr. Blake's evidence, because the Leader failed to provide him with all the information he needed to enable him to complete the forms.

80. Mr. Molloy's fourth main argument was to suggest that the Leader's public record was a basis upon which the Tribunal could determine that his culpability – if it otherwise regarded it as serious – could be reduced to non-serious. However, he acknowledged in response to questioning by the Tribunal, that that argument was more appropriate to the second limb of section 28 (1A) (public policy and public good not requiring dismissal) it it arose. Accordingly, the long and impressive list of testimonials to the Leader's character put in evidence before the tribunal do not assist him on the issue of the seriousness or otherwise of his culpability.

Summary and Conclusions

81. I turn now to the value-judgment that the Tribunal is required to make as to the seriousness of the misconduct in office it has found. I do so by reference to the written findings on guilt.

82. The Tribunal, in Section 6 of its unanimous Findings, dismissed the three effective allegations of failure to provide annual financial statements. In doing so, it made an observation in paragraph 6.33, which gives some indication of the seriousness with which the Tribunal at that time unanimously regarded failure to comply with the central obligation in section 4, namely to provide an annual financial statement to the Ombudsman Commission, i.e. an allegation unadorned with any implication of corruption or other dishonesty or, conflict of interests:

"An allegation of not giving an annual statement under the Leadership Code Framework is serious. A failure to do so is a dereliction of an important duty when assessing the level of proof required, we must consider the seriousness of the allegation and the consequences which could flow from it".

83. The Tribunal, in Section 7 of its Findings on Liability, found the Leader guilty of five allegations of misconduct in office in his late provision of his financial statements in respect of years ended 1999, 2000, 2001, 2002, and 2004. As already noted, the Leader was not only well familiar with his obligations under the Leadership code to provide timely and complete annual statements of his financial affairs, not least through his Chairmanship of the Constitutional Planning Committee that gave rise to the Code. No doubt, he was or should have been, conscious of the heavy responsibility cast upon him as Prime Minister from time to time to set an example by scrupulous observance of the Code. As detailed in paragraphs 7.10 – 7.22 of the Tribunal's Findings on Liability, he also had the benefit and good of frequent written reminders and warnings from the Ombudsman Commission over these years as to the importance of timely and full compliance. Such reminders were routinely followed by silence from him and further long delays, sometimes over two or more years before he finally provided the required statement. Even then it was incomplete, notably in four of the five cases not identifying the banks where he held accounts, the numbers of his accounts or their individual transactions or balances.

84. The delays were long: over two years delay in respect of the first year (1998 - 1999) and without identification of the bank(s) at which he held accounts, the account numbers of their balances; over three years' delay in respect of the second year (1999 – 2000) and again without bank or account details; over two years delay in respect of the third year (2000 – 2001) and again no bank or account details, save the unfulfilled indication "to follow"); about a year's delay in respect of the fourth year (2001 – 2002) and still no bank account details; and nearly two years in respect of the fifth year (2003 – 2004), in this instance with details of banks, accounts and balances.

85. The Tribunal dealt with the above and other incomplete returns in section 8 of its Findings on Liability. There were eight in all, covering the period 1992 to 2005. The main matters of concern, as indicated in Section 8.6 – 8.9 of the Tribunal's Findings, were the Leader's failure to provide details of his parliamentary salaries and allowances or of his bank accounts. The Tribunal found, in Section 8.11 – 8.13 of its Findings on Liability that his omissions of these details were such that he must have known he was not complying with section 4(1) and 6(b) of the Organic Law on Leadership. In section 8.18 the Tribunal unanimously stated that, if it were necessary to do so, it would find that he did not complete the statements to the best of his knowledge. More specifically, the Tribunal rejected his suggestion in evidence that he had been unaware, when making his returns, of the amount of his parliamentary salaries and allowances or of the identity of the banks where his accounts were held, the account numbers or their balances. In short, the Tribunal unanimously disbelieved the Leader's evidence on these matters, a serious reflection on his honesty – and leaving an unanswered question as to why he held back these details.

86. The ten years' history of late and incomplete returns, coupled with the Leader's lack of response, or explanation or apology to the Ombudsman Commission's repeated reminders and warnings, suggest to me a disregard, bordering on disdain for his Constitutional obligations and the Commission. It would be bad enough in the case of any leader, but it is particularly reprehensible for one of his high standing and influential involvement in the initiation of the Leadership Code.

87. The common law looks to a notional reasonable and suitably informed man on a Clapham or Sydney bus as a good point of reference for a court when determining whether conduct is "negligent" in fact and law. We are considering another familiar and readily understood word, or combination of words here, "serious culpability". How would the notional ordinary, reasonable and informed "Grass Roots" man or woman in Port Moresby – say in Gordon's Market or Boroko Tabari Place – view the Leader's proved misconduct in office as described in the Tribunal's Findings on Liability? As a matter of plain language and in this statutory and factual context, could such a notional reasonable person, blessed with common-sense and workings of the world, be of the view on the proved misconduct of the Leader that it was not seriously culpable or blameworthy? I doubt it. In my view, for the reasons advance by Mr. Kaluwin for the prosecutor, and for the reasons I have set out in this Finding, the Leader's proved misconduct in office, in its totality, clearly amounted to "serious culpability" as used in section 28(1A) of the Constitution, giving those words their ordinary and natural meaning. I believe, applying also the "Grass Roots Man" test, that that would also be the view of the notional "ordinary", reasonable man in Port Moresby or elsewhere in Papua New Guinea with full knowledge of Leader's misconduct.

88. It follows that, in my view, there is no room to consider the second limb of section 28(1A)(b) of the Constitution, and that the only proper course open to the Tribunal would be to recommend the Governor General to dismiss the Leader.

89. As the Hon. Roger Gules and Sir Bruce Robertson are in the majority view that the Leader's proved misconduct in office does not amount to serious culpability, their view must prevail on that issue. And in finding, as they do that public policy and the public good do not require dismissal pursuant to section 28(1A)(b) they are recommending to the Governor General one of the alternative penalties for which s 2 of the Leadership Code (Alternative Penalties) Act provides. Given my strong view contrary to their on the issue of serious culpability, I do not consider it appropriate for me to express any view on their recommendation of an alternative penalty.

90. I conclude by expressing my thanks to counsel on both sides for all the assistance that they have given to the Tribunal on the law and as to the facts, both in writing and orally.

Dated at Waigani this 24th day of March 2011

(Signed)
............................................................
The Right Honourable Sir Robin Auld