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Papua New Guinea Leadership Tribunal |
PAPUA NEW GUINEA
[IN THE LEADERSHIP TRIBUNAL]
AND IN THE MATTER OF A REFERENCE BY THE PUBLIC PROSECUTOR UNDER S 27 (2) OF THE ORGANIC LAW ON THE DUTIES AND RESPONSIBILITIES OF LEADERSHIP
AND
IN THE MATTER OF THE HONOURABLE PETER IPATAS, MEMBER OF PARLIAMENT AND GOVENOR OF ENGA PROVINCE (THE LEADER)
WAIGANI: JUSTICE PANUEL MOGISH (CHAIRMAN)
SENIOR MAGISTRATE DANNY WAKIKURA (MEMBER)
SENIOR MAGISTRATE SASA INKUNG (MEMBER)
Counsel:
Mr. N. Miviri, for the Public Prosecutor
Mr. Steven, for the Leader
4 August 2006
DECISION ON PENALTY
1. BY THE TRIBUNAL: On 22 June 2006, this tribunal found the Leader Hon. Peter Ipatas guilty on 16 allegations of misconduct in office which are allegations 4- 7 and 12 – 23. These allegations are set out in full in Appendix 1. The tribunal also found the leader not guilty on the remaining 7 allegations which are allegations 1-3 and 8-11. The matter was then adjourned.
2. On 11 July 2006, the Tribunal resumed. On that day the leader made a statement and pleaded for leniency. The tribunal also received character evidence on behalf of the leader and heard submissions from both Counsel on issue of penalty. The matter was adjourned to today for the tribunal to hand down its decision. The law requires that our judgment be delivered in public.
3. At the outset we consider it important to restate once again the purpose of the Leadership Code. In SC Reference No. 2 of 1999[1] The Supreme Court said at p 342;
".....the entire thrust and the primary purpose of the Code is "to preserve the People of Papua New Guinea from misconduct by its leaders".
We accept also that more specifically, the purpose of the Code is to ensure as far as possible that the leaders specified in Constitution s.26 do not offend in the various ways prescribed by the provisions of Constitution s.27, and that these provisions are geared towards advancing the purpose of protecting the people from the improper and corrupt conduct of their leaders and to ensure, as far as possible, that such breaches are not committed in the first place.
This view is amply supported by the elaborate and comprehensive system of Annual Leadership Statements all leaders subject to the Code have to submit to the Ombudsman Commission and the independent investigative and enforcement powers vested in the Ombudsman Commission.
This wider purpose of accountability is re-in forced by a system of punitive sanctions that leaders found guilty of misconduct in office are subject to, quite apart from dismissal from office."
Further on at p.343 the Court said:
"The thrust of the legislations is to diligently investigate and prosecute any person holding current leadership office who is alleged to have committed offences of misconduct and if, after due inquiry, is found guilty and unworthy of continuing in office, then he is liable to be dismissed from office. That is for the preservation of the people from abuse of office by leaders".
5. We also remind ourselves on what the Supreme Court said in Re Leo Morgan.[2] At p.464 the Court said:
"And in this connection we consider that the Constitution insofar as it seeks to preserve the people of Papua New Guinea from misconduct by its leaders, should not be considered as a "penal" statute. In requiring a higher standard of behaviour from its leaders that from the ordinary citizens, it should not be considered as "penalizing" or "punishing" a leader, but as ensuring in the interests of the safety of the people that only persons who are prepared to accept added restrictions on their personal behaviour should become leaders. No citizens need become."
6. The Constitutional Planning Committee in its final report saw the need for quality leadership and devoted a Chapter in its' Report on the Leadership Code. What they said about the responsibility of quality leadership almost 30 years ago is equally applicable in today's modern Papua New Guinea. At paragraphs 1, 5 and 11 of the Report, the founding fathers of our Constitution said:
"1. The success of a nation, we believe, depends ultimately on its' people and their leaders. No amount of careful planning in government institutions or scientific disciplines will achieve liberation and fulfilment of the citizens of our country unless the leaders – those who hold official position of power, authority or influence- have bold vision, work hard and resolutely dedicated to the service of their people".
"5. A leader's loyalty to his office must spring from his genuine concern for his country. It is always expected of a patriot that he will put his country's interest before his own. In the event of any conflict of interest, the interests of the people he served must prevail over his own personal interest. The higher the office held in the state, the more serious the office-holders responsibility. The greater the power, the greater the obligations of the person holding the powerful position. The power that he holds is not meant to be for his own honour and fame; much less it is for his own material aggrandizement. The power he holds is for the betterment of the citizens of Papua New Guinea."
"11. No one can do more to set the tone and style of the nation than the leaders. Contrariwise, no one in the nation can do more to lower the standards than the leaders. Leaders are expected to demonstrate their leadership both by listening to the people, and by speaking to and for them. More importantly, they are meant to give leadership in action. Both by inaction and improper action, the leaders can betray the people's confidence in them. What the leaders do and how they are seen to do it; these are things that can legitimise them in the eyes of the people and set the standards for the nation."
7. We have considered all the evidence presented to us on the issue of penalty. Mr.Ipatas is a leader in his own right. He has been described as the "people's man". We do not doubt those observations. The character evidence presented to us by prominent individuals in the community is testimony to his leadership qualities. His credentials, standing alone, are of little significance to the allegations for which he has been found guilty of. In Re Gerald Sigulogo[3] the Leadership Tribunal made this point clear when it said:
"His good church standing and family life cannot save him, in our view, from the appropriate penalty. We are judging him on his public life, not on the quality of his private life".
8. We are not here to judge the good deeds the leader has given to his Apulini tribe, the people of Enga and Papua New Guinea as a whole in his private life. We are here because the leader in the course of performing his public duty has undermined the responsibility bestowed on him by the people through the Constitution and the Organic Law on the Duties and Responsibilities of Leadership.
9. We have read the submissions advanced by the leader's Counsel Mr. Steven and Mr. Miviri, Counsel representing the Public Prosecutor. Mr. Steven urged this Tribunal to consider an alternative penalty while Mr. Miviri strongly submitted for the maximum penalty to be imposed on the leader. Both Counsels have referred us to numerous judgments and legislations, both here and abroad, on how we should deal with the leader. We thank them for their assistance.
10. This tribunal is now required by law to make its recommendations on penalty to the appropriate authority. In this case the appropriate authority that we are required by law to refer our decision to is the Speaker of the National Parliament, for presentation to the Parliament, and to the National Executive Council.
12. The tribunal's jurisdiction on the question of penalty is to be found in the provisions of the Constitutional, s. 28 (1)(g)(ii) and s.28 (1)(A); the Organic Law on the Duties and Responsibilities of Leadership, Sections 27 (5) and the Leadership Code (Alternatives Penalties) Act 1976, s.2
13. Section 28 (1)(g)(ii) and 28 (1)(A) of the Constitution provides as follows:
"28 Further provisions.
(2) For the purposes of this Division, an Organic Law –
(g) shall establish independent tribunals that-
(i) shall investigate and determine any cases of alleged or suspected misconduct in office referred to them in accordance with the Organic Law; and
(ii) are required subject to subsection (1A), to recommend to the appropriate authority that a person found guilty of misconduct in office be dismissed from office or position;"
14. Section 28(1)(A) provides as follows:
"(1A) An Organic Law may provide that where the independent tribunal referred to in Subsection (1)(g) finds that-
(a) there was no serious culpability on the part of a person found guilty of misconduct in office; and
(b) public policy and the public good do not require dismissal,
it may recommend to the appropriate authority that some other penalty provided for by law be imposed."
15. Section 27 (5) of the Organic Law on the Duties and Responsibilities of Leadership provides as follows:
"27. Tribunals.
(5) If the tribunal finds that a person to whom this Law applies is guilty of misconduct in office, it shall recommend to the appropriate authority that –
(a) he be dismissed from office or position; or
(b) as permitted by Section 28 (1A) (further provisions relating to the Leadership Code) of the Constitution and in the circumstances set out in that subsection – some other penalty provided for by an Act of the Parliament be imposed."
16. Section 2 of the Leadership code (Alternative Penalties) Act 1976 provides:
"2. Alternative penalties
The penalties that may be recommended and imposed under and for the purposes of Section 28 (1A) of the Constitution and Section 27 (5)(b) of the Organic Law are that the person found guilty of misconduct in office –
(a) be fined an amount fixed by the tribunal, not exceeding K1000.00 or
(b) be ordered by the appropriate authority to enter into his own recognizance in a reasonable amount, not exceeding K500.00, fixed by the tribunal that he will comply with Division III.2 (Leadership Code) of the Constitution and with the Organic Law during a period fixed by the tribunal, not exceeding 12 months from the date of the announcement, under Section 27(6) of the Organic Law, of the decision of the tribunal; or
(c) be suspended, without pay, from office or position for a period not exceeding three months from the date of commencement of the suspension; or
(d) be reprimanded,
or if he is a public office-holder as that expression is defined in Section Sch.1.2(1) of the Constitution, that, as determined by the tribunal –
(e) he be reduced in salary; or
(f) if his conditions of employment are such as to allow of demotion – he be demoted."
17. The effect of the above can be summarised as follows. Section 27 (5) of the Organic Law on the Duties and Responsibilities of Leadership requires a tribunal to dismiss a leader from office or his position unless it finds under s. 28(1)(A) of the Constitution that (a) that there is no serious culpability on the part of the leader and; (b) public policy and the public good do not require dismissal of the leader. In those circumstances the tribunal may recommend under s.2 of the Leadership Code (Alternative Penalties) Act 1976 an alternative penalty, which is a penalty other than dismissal from office.
18. The correct approach to be taken by a Leadership Tribunal in considering the appropriate penalties for various offences are set out by former Chief Justice Sir Arnold Amet in the Supreme Court case of Peter Ipu Peipul v The Leadership Tribunal[4]. At p.24 His Honour said:
"In reading these various provisions together, I am of the opinion that it was intended that against each provision such as s.27 (1)(a), (b), (c) or (d) or s.27 (2), (3) or (4) individual disjunctive penalties be imposed, but rather findings of guilt may be made in respect of such distinct alleged offences and that the consideration and determination of appropriate penalty to be recommended to the appropriate authority is to be in respect of the totality of conduct or conducts found to be in breach of the Leadership Code.
I believe that such an approach is intended to take place at the end of the final determination of guilt or innocence, to look at all of the conduct in their totality in the consideration and application of Section 28 (1A) as to whether there was no serious culpability on the part of the person found guilty of misconduct and whether public policy and public good do not require dismissal."
19. We adopt those observations. In our views, it would not be appropriate for a leadership tribunal to impose individual penalties for clustered offences arising under s.27 (1)(a) to (d) and s.27 (2) of the Organic Law on the Duties and Responsibilities of Leadership. The word "or" in s.27 (1) gives a Public Prosecutor an option to charge the leader with only one of the offences prescribed in (a), (b), (c) or (d).
CULPABILITY
20. In John Nilkare v The Leadership Tribunal[5] the Supreme Court said the word "culpability" "involves serious blame, an act involving wrongful intention or negligence, an act deserving censure." Culpability relates to the degree of blameworthiness on the offender. Before any penalty can be considered, it is necessary to fix the culpability or the blameworthiness of the offender.[6] In determining the issue, the Tribunal is entitled to take into account factors favourable to the leader and factors that aggravate the misconduct.
21. There a number of penalty options available to the Tribunal ranging from being reprimanded to the ultimate penalty of dismissal from office. Whatever penalty the Tribunal imposes depends on the circumstances of each case. Not all proven misconduct in office allegations should attract the maximum prescribed penalty. That view was emphasised by Amet CJ(as he then was) in Peter Peipul's[7] case where His Honour said:
"I do believe that public policy and public good" require that leaders who are found to have misconducted themselves in office be PENALISED. I do not believe, however that it is good policy to conclude that every such leader should automatically be expected to be dismissed from office as a matter of public policy. There are so many variables in the conduct that each one must be considered on its merits."
22. In determining this issue we are guided by the principles that the maximum penalty of dismissal from office should be reserved for the most serious instances of misconduct in office. Such would be the case where the culpability on the part of a leader is extremely high or very serious that public policy and public good would be served by the imposition of the maximum penalty. Whether a conduct is serious or not is a question of fact to be determined from the overall circumstances of the case. The involvement of the leader in the commission of the offence, the extent of his involvement, whether the leader is to be blamed entirely for the commission of the offence or whether other people were involved whose actions have contributed to the commission of the offence are some of the important considerations that we bear in mind in determining the culpability of the leader.
23. Some misconduct offences are such that the obvious result of dismissal is apparent while some are not that clear. If the nature of the conduct falls within the realms of a crime then obviously that reflects serious culpability warranting the maximum penalty of dismissal. There are many examples from past Leadership Tribunals where leaders have been dismissed from office because the evidence adduced established breach of criminal offences. In Re Anderson Agiru Leadership Tribunal[8], the Tribunal said "that a breach of any criminal law by leaders to be contrary to the concepts of public good and public policy that they require dismissal". See also Re Sigulogo.[9]
24. Failing to file an Annual Statement may or may not warrant dismissal from office. In the Re Timothy Bonga Leadership Tribunal,[10] the Tribunal recommended dismissal from office where the leader failed to give his Annual Statement to the Ombudsman Commission for more than five years, failed to respond to give explanation of details and failed to cooperate with the Ombudsman Commission. The tribunal observed that "while it may have been the case that with adequate explanation that these counts taken separately would not deserve a recommendation of dismissal, the lack of acceptable explanation and the consistent ignoring of responsibility to make returns does warrant dismissal in each of them."
25. In Agiru's case[11] the Tribunal considered that an alternative penalty of a fine would be appropriate where the leader failed to lodge his Annual Statement, choose to ignore the numerous reminders from the Ombudsman Commission and offered no explanation for his failure to comply with his constitutional duties.
26. Those cases simply confirm our view that each case should be determined on its own merits. No hard and fast rules can be prescribed as to how a particular case should be determined.
PUBLIC POLICY AND PUBLIC GOOD
27. What is meant by "public policy" and "public good"? We have found no interpretation of these phrases in the relevant legislations or constitutional law. In Patterson v NCDC [12] Kandakasi J makes some useful remarks on how to determine public policy considerations. His Honour states:
"In most cases, legislation expresses public policy considerations. They become the legislative intent behind whatever the legislation is. It is trite law in our jurisdiction that, all legislative provisions must be given their fair, large and liberal meaning so as to give effect to the legislative intent."
28. The intent of the provisions relating to the Leadership Code can be ascertained from the final report of the Constitutional Planning Committee. We have already referred to some portion of the Report in the beginning of our judgment. We consider it important to restate those policy statements in full because they set the standard of leadership in this country. In our view the status of any country can be best measured against the quality of its leadership. A country is doomed if the quality of its leadership is corrupt, non-transparent and unaccountable for their conduct. Chapter 3 of the Final report of the Constitutional Planning Committee is devoted to the Leadership Code.[13]
29. One thing that is abundantly clear from those statements is the public perception of leadership. The remarks by the then deputy Chief Justice, Sir Mari Kapi in John Nilkare's [14] case makes this point even clearer. In discussing the scope and effect of s.27 (1)(b) to (d) of the Constitution His honour said:
"One thing is clear, it is the public perception that is the dominant theme. Section 27 (2) speaks about "doubt in the public mind". When demeans his office or his integrity is called into question this will diminish the respect for and confidence of government.
What then are proper standards of conduct" I have no doubt that the laws of this country in themselves set a standard of conduct. Here a leader breaches or ignores any law of Papua New Guinea, he is likely to breach s.27 (1)(b) – (d) of the Constitution.
Standards of conduct by leaders may also be found in any policy direction or guidelines that may be established by appropriate lawful authorities... The standard of conduct of leaders will be determined by the principles set out in these guidelines."
30. Similar remarks were made by the Supreme years earlier on in 1978 in Re Leo Robert Morgan[15] where the Court said:
A leader has a duty not to place himself in a position in which he could have a conflict of interests or might be compromised when discharging his duties, not to demean his office or position, not to allow his public official or personal integrity to be called into question, not to endanger or diminish respect for and confidence in the integrity of government and not to use his office for personal gain. And in this connection we consider that the Constitution, insofar as it seeks to preserve the people of Papua New Guinea from misconduct by its leaders, should not be considered as "penalising" or "punishing" a leader; but as ensuring in the interests of the safety of the people that only persons who are prepared to accept added restrictions on their personal behaviour should become leaders. No citizens need become a "leader".
31. With respect we adopt those observations that we have alluded to. By the end of the day, the standard is that of the ordinary reasonable man. If the ordinary man thinks that the conduct is unbecoming of a leader because it is inconsistent with the policy underlining the Leadership Code, than it cannot be said to be for the public good.
CATEGORY TWO
32. We found the leader guilty of all four (4) counts in Category Two which are counts 4, 5, 6, and 7. These counts relate to the Leaders family company "Panda Builders" being awarded contract by the Provincial Supply and Tenders Board to build a two double storey classroom with the leaders Provincial Support Grant (PSG) in the sum of K250 000. One of the counts also relate to the Leader failing to disclose to the Ombudsman Commission his business interests in Panda Builders.
33. The initial project proposal was submitted by the Irelya Community School Board of Management to the Joint Provincial Planning and Budget Committee who then considered and facilitated the process to secure the K250,000. The Provincial Supply and Tenders Board in its own discretion awarded the contract to Panda Builders because of the company's proven track record in constructing buildings. These bodies comprise of professional and technical people who operate independently in arriving at their decisions. The leader is not a member of either of the committees and was not a privy to any of their decisions.
34. The leader's involvement was that he applied for and sought funding under Provincial Support Grant that was due for his consistency. He was doing his job as a leader to seek funding for projects in his electorate. There is no evidence that suggests that he influenced the Joint Provincial Planning and Budgetary Committee in awarding the contract to his family company. The degree of his culpability or blameworthiness should be calculated from his limited role at the preliminary stage of the process.
35. One of the reasons that tainted the Leaders Involvement was that his company was nominated. Under the relevant RAP guidelines, funds must not be allocated for proposals made by "...any business fully or part-owned by the member." This fact was not made known to the leader. The committee appeared unconcerned about a possible conflict of interest in a provincial government contract being awarded to a business entity owned by Mr. Ipatas and his family, given that the leader was the Governor of Enga and Chairman of the Provincial Assembly. The various committees failed in that respect. They approved funding to the detriment of the leader. To that extent we find that the culpability of the leaders conduct is lessened by the oversight on the part of the public servants. They are expected to explain to the elected leader how the government policy can be applied into their work programs. Failure makes them equally liable to any allegations of misconduct.
36. Similar observations were expressed by the Tribunal in Nali [16] case. At p.22 while applying the facts to the issue of Public policy the tribunal said:
"In the circumstances, the actions of the police and the Electoral Commission were clearly against public policy and public good. One had a duty to enforce law while the other had the duty to ensure that there was free and open election. They failed in those duties...such actions seriously outweigh and lessen the culpability of the leader in this case."
37. While the leader did not directly take part in the awarding of the contract, he was blinded to the implication of this arrangement. He did not see the potential of a conflict of interest arising when his family company was engaged to build the classrooms. It didn't occur to him that to the ordinary man, this was a typical case of unjust enrichment of public funds irrespective of what his good intentions were. The CPC alluded to this very scenario in their report when they said:
"45. Interests in government contracts
It is clear that if a leader has an interest in a government contract this potentially involves a conflict of interest, especially if the leader is in a position of considerable interest. The greater his interest in the contract, the greater is the conflict between his private interest and his public duty. A leaders interest in a government contract could be direct, through, for example, a small firm of which the leader and his family may be the major partners, or relatively indirect, through a shareholding held by the leader or member of his family. In either case, we believe the principle is the same."
38. The Constitutional Planning Committee did not advocate that leaders should not be engaged in this kind of transactions but merely sounding a warning to those who venture into this kind of arrangement and the possibility of a likelihood of conflict of interest. At paragraph 46, the Constitutional Planning Committee said:
"We recognise, that there are some situations where a leader's interest is such a contract is insignificant, or the nature of the particular contract is such that the leader's interests should be acceptable. In particular we do not wish to prevent leaders from being involved in wholly Papua New Guinea enterprises which assist substantial number of our people to more fully participate in their own development and which have interests in government contracts which are merely incidental to their main activity."
39. Leaders are required by law to inform the Ombudsman Commission of their business connections. If in doubt, then they should seek assistance from the Ombudsman Commission instead of hoping that their misdeed would not be detected.
40. Panda Builders was one of the two companies in Enga capable of constructing buildings of various kinds. They were selected by the Tender and Supply Board because of their building records, their experience and their previous commitments to Irelya Primary School. In this case Panda Builders constructed the classrooms for K250,000. In addition they used K50,000 of their own capital and also supplied desks for the classrooms. The purpose and the application for which the funds were allocated for were adhered to. Building of classrooms is permitted under the relevant guideline. There is no evidence that the leader or his company dishonestly applied the monies to their benefit. These classrooms continue to benefit the community particularly the children within and around Irelya village.
41. In our final analysis on matters for and against the leader's conduct, we find that there was no serious culpability or blameworthiness on the part of the leader in relation to Counts 4, 5, 6 and 7. Public policy and public good does not require dismissal. We consider that the penalty of a fine on each count as provided for under s.2 of the Leadership Code (Alternative Penalties Act) 1976 is appropriate. Thus applying the totality principle in Peter Peipul's case[17], we recommend that the leader be fined K1000.00 on each of the four counts. We recommend that he pay a total fine of K4,000. The fine shall be paid into the National Court Registry within seven (7) days from today's date.
CATEGORY FOUR
42. This category involves counts 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, and 23 and relates to the lodging of incomplete annual Statements were not complete. Information relating to some of the leader's assets, liabilities etc were not disclosed ion the Annual Statements.
43. From the evidence we found that the leader did furnish Annual Statements to the Commission for the periods 1994/95, 1995/96, 1996/97, 1997/98, 1998/99, 1999/2000. However, these Annual Statements were not complete. Information relating to some of the leader's assets, liabilities etc were not disclosed in the Annual Statements.
44. In mitigation it was submitted that it was an oversight on his part and did not intend to conceal additional benefits. Sought to contrast from the case of Timothy Bonga[18] where the leader where the maximum penalty of dismissal was recommended because the leader not only failed to lodge Annual Statement but failed to give explanation when requested by the Ombudsman Commission.
45. Section 4(1) of the Organic Law on the Duties and Responsibilities of Leadership requires the leader to give to the Ombudsman Commission his Annual Statement. This is a mandatory requirement and must be done at least once in every period of 12 months. The leader is required to give
"a statement to the best of his knowledge setting out, in respect separately of himself and his spouse and any of his children under voting age – (a) the total assets including money, personal property and real property in the possession or under the control of each of them; and (b) the total income received by each of them during the period to which the statement relates and the source of each of those incomes; and (c) the business connexions of each of them (including any business connexions with unincorporated profit-seeking organisations); and (d)the directorship or other offices in a corporation or an unincorporated profit-seeking organisation held by each of them; and (e) all business transactions entered into by each of them (including transactions with unincorporated profit-seeking organisations) during the period to which the statement relates; and (f) all gifts received by them ( other than gifts received in the normal course of events from close relatives) during the period to which the statement relates and the value of those gifts; and (g)the assets acquired by each of them during the period to which the statement relates; and (h) the liabilities incurred or discharged by each of them during the period to which the statement relates, and the amount of each such liability."
46. By virtue of s.17 (1)(a) of the Organic Law on the Duties and Responsibilities of Leadership the Ombudsman Commission is required by law "to examine or cause to be examined each statement lodged with it under Section 4." This is a mandatory requirement and is part of the function of the Ombudsman Commission.
47. Section 4 (4) of the Organic Law on the Duties and Responsibilities of Leadership provides that "The Ombudsman Commission or other authority, may, by notice in writing to a person to whom this Law applied, require him to explain or give details or further details of any matters relating to the statement." This is a discretionary power.
48. For 6 years commencing 1994 up to 2000 the leader furnished to the Ombudsman Commission his Annual Statements. But the statements were incomplete. Also during this period the Ombudsman Commission did not request from the leader in writing any matters relating to the statement under s.4(4) of the Organic Law on the Duties and Responsibilities of Leadership. They were not able to request any further details from the leader because they had not examined his Annual Statements. It was not until 2000 when they were asked to investigate certain allegations against the leader that it discovered that the Annual Statements provided by the leader for the period 1996 and 2000 were incomplete.
49. Mr. Yalo gave evidence on the procedures used by the Ombudsman Commission once the Annual Statements are received from the leader. It was his evidence that the leaders Annual Statement like all other leaders are acknowledged and then are filed away. We find this to be most unsatisfactory exercise of its discretionary powers. The argument that it is a discretionary matter makes no difference to us. This provision was enacted for a purpose alluded to by the Supreme Court in SC Reference No 2 of 1992[19] and that is that they "are geared towards advancing the purpose of protecting the people from the improper and corrupt conduct of their leaders and to ensure, as far as possible, that such breaches are not committed in the first place"(Our emphasis). Failure by the Ombudsman Commission "to examine or cause to be examined each statement lodged with it under Section 4" in accordance with s.17(4) of the Constitution to some extent contributed to the leader's failure to furnish relevant information in his Annual Statement. While we accept that the onus is on the leader to ensure that his Annual Statements are correct in material details, it should not distract from the Ombudsman Commission function to assist leaders' present relevant information. Preventing a breach in the first instance by being proactive should be one of the Ombudsman Commission's principle responsibilities.
50. In our final analysis on matters for and against the leader, we find that there are no serious culpability or blameworthiness on the part of the leader in relation to Counts 12, 13, 14, 15, 16, 17, 18, 19, 21, 22, and 23. In our view public policy and public good does not require dismissal. We consider that the penalty of a fine on each count as provide for under s.2 of the Leadership Code (Alternative Penalties Act) 1976 is appropriate. Thus applying the totality principle in Peter Peipul's case[20], we recommend that he be fined a total amount of K12,000. The fine shall be paid into the National Court Registry within 7 days from today's date.
CONCLUSION
51. In accordance with s.27 (6) of the Organic Law on the Duties and Responsibilities of Leadership, a copy of this decision shall be sent to the Speaker, for presentation to the parliament, and to the National Executive Council.
Dated this 4th day of August 2006
Justice MOGISH Mr. WAKIKURA Mr. INKUNG
Chairman of the Leadership Member of the Leadership Member of the
Tribunal Tribunal Leadership Tribunal
[1] [1992] PNGLR
[2] [1978] PNGLR 460
[3] [1988-89] PNGLR 384
[4] No 2 of 2002
[5] SC536
[6] [1987] PNGLR 262 referred to in the Nali Tribunal
[7] (Supra)
[8] Un reported, dated 18 January 2002
[9] (Supra)
[10] Unreported
[11] Supra
[12] (2001) N2145
[13] Constitutional Planning Committee Report
[14] SC536
[15] [1978] PNGLR 460
[16] N2746
[17] Supra
[18] Supra
[19] Supra
[20] Supra
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