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Papua New Guinea Leadership Tribunal |
N5690(LT)
PAPUA NEW GUINEA
THE LEADERSHIP TRIBUNAL APPOINTED PURSUANT
TO SECTION 27 (2) AND (7) (e) OF THE ORGANIC LAW ON DUTIES AND RESPONSIBILITIES OF LEADERSHIP
AND:
IN THE MATTER OF DR. BILLY MANOKA, COMMISSIONER INDEPENDENT CONSUMER AND COMPETION COMMISSION (NO.3).
REFERENCE NUMBER LT.N0.1 OF 2014
BEFORE:
JUSTICE SALATIEL LENALIA
Chairman
HIS WORSHIP MR. IGNATIUS KUREI
Senior Magistrate – Member
HER WORSHIP MS. ROSIE JOHNSON
Senior Magistrate – Member
Waigani: 2nd & 25th July 2014
CONSTITUTIONAL LAW – Leadership Code – Misconduct in office – Failure to submit annual statements to the Ombudsman Commission – Admitted allegations – The Leader admitted liability on all three (3) allegations – Consideration as to whether the Leader should be recommended either for dismissal under s.27 (5) (a) or should he be considered for an alternative penalty pursuant to Section 28(1A) of the Constitution (Leadership Code).
LEADERSHIP TRIBUNAL – Misconduct in office – Failure to submit annual statements for three consecutive periods – No serious culpability – "Public Policy and public good" – Alternative penalties – Relevant considerations.
LEADERSHIP TRIBUNAL – Misconduct in office – Failure to submit annual statements for three periods though breaches the Leadership Code, did not constitute serious culpability – Appropriate penalty – Misconduct in office – Whether failure to submit annual statements for the three periods constitute serious culpability – Consideration on "public policy and public good" – Relevant consideration – Alternative penalties –Imposition of maximum fines appropriate.
Cases cited:
Ref: John Mua Nilkare [1998] PNGLR 472
Ref. Hon. Dr. Puka Temu MP (2006) N3099
Supreme Court Reference No.2 of 1992 [1992] PNGLR 336
Re. Hon. Peter Ipatas Member of Parliament and Governor of Enga Province (2006) N3078
SCR No.3 of 1986: Reference by Simbu Provincial Government [1987] PNGLR 15
Haiveta v Wingti (No.3) [1994] PNGLR 197
In the Matter of Melchior Pep Member of Parliament (2007) N3134
Peter Peipul-v-Hon. Justice Sheehan, Orim Karapo & Iova Geita & Ors SCM 2 of 2002
Application by Gabriel Dusava (27.10.98) SC 581
Reference Grand Chief Sir Michael Somare MP (21.3.2011) N4224.
Application Pursuant to Section 155(4) of the Constitution Ref: John Mua Nilkare [1998] PNGLR 472
Major General Jerry Singirok-v-Hon. Justice Jalina, Cosmos Bidar & Regina Sagu and The State (21.3.2000) N2068
LT. No.2 of 2012 Ref Hon. Mark Maipakai MP, Member for Kikori Open Electorate (15.5.2012) N521 (LT)
Nali (No 1) (Re Allegations of Misconduct in Office by Honourable Michael Nali (No 3) (2003) N 23991
Supreme Court Reference No 1 of 1978 In Re Leo Morgan [1978] PNGLR 460 at 464
Re: Joseph Auna [1980] PNGLR 500.
LT. No1 of 2014 Arthur Somare MP, Member for Angoram Open Electorate (2012) N4743 (LT)
LT. No.1 of 2013 Joseph Lelang MP, Member for Kandrian Gloucester Open Electorate (2013) N5212 (LT)
Counsel:
Mr. P. Kaluwin, the Public Prosecutor
Mr. H. Henao, for the Leader
July, 25th 2014
1. LENALIA J (Chairman): The hearing of the allegations against Dr. Billy Manoka, Commissioner for Independent Consumer and Competition Commission had gone through a number of stages. The history of those stages can be read in the Tribunal short judgments dated 12th May 2014 and 4th July 2014. Those stages included the leader's former lawyer Mr. Sweeney QC withdrew from representing the leader. This was followed ny engagement of Mr. Henao of Henaos Lawyers as counsel for the Leader.
2. When Mr. Henoa took over the matter, from instructions received from his client, he made an application to amend the not guilty plea into guilty. The tribunal accepted this and confirmed the plea of admitting liabily.The delay was also caused by counsels making an application to refer the legislation concerned that is the Independent Consumer and Competition Act.
3. Exercising its jurisdiction under s.18 (2) of the Constitution, the Tribunal made a Constitutional Reference pursuant to s.18(2) of the Constitution (SCC (OS) No.3 of 2014 for the interpretation of the old s.12(f) of the ICCC Act which has now been amended.
3. When Mr. Henao took over the matter on 16th April 2014, his client amended his not guilty plea to guilty and the tribunal heard submissions on the penalty on 2nd of this month. The three allegations contained in the Reference which the leader admitted liability to are breaches or charges of leader's failure to submit to the Ombudsman Commission his annual statement for three consecutive periods. This is in breach of Section 4 (1)(2) of the Organic Law on the Duties and Responsibilities of Leadership.
Brief Facts
4. The Reference contains all relevant facts and evidence on which the Leader was referred. Dr. Billy Manoka was appointed a part time Associate Commissioner to the Independent Consumer and Competition Commission (ICCC) on 17th April 2008 for a period of five (5) years. By virtue of that appointment, he became a "Leader" pursuant to section 26(1)(g) of the Constitution and Section 1 of the Organic Law on the Duties and Responsibilities of Leadership (OLDRL). On 5th May 2010, his appointment was removed and he was elevated when appointed as the Commissioner of ICCC, he remained a "Leader". Dr. Manoka faces three (3) charges of misconduct in office for failing to submit his annual statements to the Ombudsman Commission on time that is within three (3) months ) for the following three consecutive periods:
(a) 17 April 2007 to 16 April 2008;
(b) 17 April 2008 to 16 April 2009; and
(c) 17 April 2009 to 16 April 2010.
6. The three allegations are worded as follows:
"ALLEGATION 1: THAT from 17th April 2007 to 16th April 2008, the Leader failed without reasonable excuse to give to the Ombudsman Commission a statement in accordance with Section 4 (1) of the Organic Law on the Duties and Responsibilities of Leadership.
IN THAT he failed to furnish to the Ombudsman Commission his annual statement for the period from 17th April 2007 to 16th April 2008;
THREBY contravening Section 4 (6) (a) of the Organic Law on the Duties and Responsibilities of Leadership.
ALLEGATION 2: THAT from April 2008 to April 2009 the Leader without reasonable excuse to give to the Ombudsman Commission a statement in accordance with Section 4 (1) of the Organic Law on Duties and Responsibilities of Leadership;
IN THAT he failed to furnish to the Ombudsman Commission his annual statement for the period from 17th April 2008 to 16th April 2009;
THEREBY contravening Section 4 (6) (a) of the Organic Law on the Duties and Responsibilities of Leadership.
ALLEGATION 3:THAT from April 2009 to April 2010 the Leader failed without reasonable excuse to give to the Ombudsman Commission a statement in accordance with Section 4 (1) of the Organic Law on the Duties and Responsibilities of Leadership;
IN THAT he failed to furnish to the Ombudsman Commission his annual statement for the period from 17th April 2009 to 16th April 2010;
THEREBY contravening Section 4 (6) (a) the Organic Law on Duties and Responsibilities of Leadership."
Addresses on the Penalty
7. We had the privilege of hearing counsels on their addresses on the penalty. Mr. Henao, the lawyer representing the Leader spoke
about the serious nature of the three charges of failure to submit annual statements. Counsel submitted that failure by any Leaders
to submit annual statements amount to serious culpability since any breaches of the Leadership Code and the Organic Law on the Duties
and Responsibilities of Leadership involves serious culpability.
8. Mr. Henao argued that his client breached the Leadership Code and submitted that such breach is not a trivial matter as the requirement
of the concerned Organic Law is safeguarded by the law itself and the standard of leadership ought to be maintained and the responsibilities
of an office must be upheld.
9. Counsel's view is that those who hold public offices must be fit and proper persons to hold such offices. He asked the tribunal to consider his client change of plea from not guilty to guilty to the three allegations. He submitted his client may have been reckless in the manner and approach he took when he did not file his annual statements in time. Counsel cited the case of Ref. Hon. Dr. Puka Temu MP (2006) N3099 and Grand Chief Sir Michael Somare Lt 1 of 2010 (15.3.2011) N4224.
10. Counsel submission is that, though the charges are failure to submit his annual statements, the highest penalty of dismissal from office may be impose because the breaches for which the Leader was referred are breaches involving Constitutional breaches against the Constitution and the OLDRL. Counsel argued that the three charges which the Leader pleaded guilty to involved late filing of his annual statements which breached s.4(6) of the OLDRL.
11. He further argued that these were not cases involving total failure or were not cases of false or misleading submission of annual statements which may border on dishonest intent would amount to serious culpability.
12. Mr. Kaluwin, counsel assisting the tribunal spoke to his 11 pages submission. He submitted that the leader's cases are ones where Dr. Manoka pleaded guilty to the three charges with two of them being withdrawn. Counsel referred to the case of Supreme Court Reference No.2 of 1992 [1992] PNGLR 336 comprising of Kidu, CJ, Amet, Los and Andrew JJ where the Court held at page 341-342 that, the entire primary purpose and thrust of the Leadership Code is "to preserve the people of Papua New Guinea from misconduct by its leaders."
13. Counsel submitted further that, the Leader on these allegations did not lodge his annual statements for consecutive periods of three years prescribed by the Organic Law and within the required time period prescribed by s.4 of the OLDRL. Counsel argued that any form of misconduct in office is very serious culpability on the part of a Leader found guilty of any form of Constitutional breaches.
14. On the instant case, Mr. Kaluwin argued that, the Leader had a duty not to place himself in a position where he as the Leader could demean his office or the position he held and no leader should allow his public, official or personal integrity to be called into question. Counsel therefore submitted that, on the instant case, there is serious culpability on the part of the Leader in not submitting his annual statements in time to the Ombudsman Commission.
15. On the final part of his submission, Mr. Kaluwin asked the tribunal to consider the circumstances of the instant case and compare it with other tribunal decisions and that the public good and public policy may not require imposition of the maximum penalty. Counsel referred to many former tribunal cases some of which I will refer to later.
Relevant Law
16. The Leadership Code and the Organic Law on the Duties and Responsibilities of Leadership define conduct of a leader both in his public or official and his or her private life. I now quote s.4 (1) – (6) of the Organic Law on Duties and Responsibilities of Leadership.
The above proviso states:
"4. Statement of income, etc.
(1) A person to whom this Law applies shall—
(a) within three months after Independence Day; or
(b) within three months after becoming such a person,
as the case may be, and at least once in every period of 12 months while he remains such a person, give to the Ombudsman Commission a statement to the best of his knowledge setting out, in respect separately of himself and his spouse and any of his children under voting age—
(a) the total assets including money, personal property and real property in the possession or under the control of each of them; and
(b) the total income received by each of them during the period 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 organizations); and
(d) the directorships or other offices in a corporation or an unincorporated profit-seeking organization held by each of them; and
(e) all business transactions entered into by each of them (including transactions with unincorporated profit-seeking organizations) during the period 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.
(2) The period to which a statement under Subsection (1) shall relate is—
(a) in the case of the first statement—the preceding 12 months; and
(b) in any other case—the period since the last statement was given.
(3) In the case of sundries and minor items it is sufficient if the declaration shows their general natures and approximate amounts or values.
(4) The Ombudsman Commission or other authority may, by notice in writing to a person to whom this Law applies, require him to explain or give details or further details of any matters relating to the statement including—
(a) sundries and minor items shown in accordance with Subsection (3); and
(b) omissions or apparent omissions; and
(c) discrepancies in the statement or between it and other statements or other information available to the Ombudsman Commission or other authority.
(5) Statements and information given to the Ombudsman Commission or other authority under this section shall not be revealed to any person except—
(a) in the course of the duties of the Ombudsman Commission; or
(b) for the purpose of proceedings or possible proceedings under Section 27; or
(c) under an order of a court of competent jurisdiction.
(6) A person to whom this Law applies who—
(a) fails without reasonable excuse (the burden of proof of which is upon him) to give to the Ombudsman Commission or other authority a statement in accordance with Subsection (1), or to give any explanation or details required under Subsection (4); or
(b) knowingly, recklessly or negligently gives such a statement or explanation, or any such details, that is or are false, misleading or incomplete in a material particular,
is guilty of misconduct in office."
17. The Leadership Code sets out and elaborates on what conduct is required of a leader. Section 27 of the Constitution states:
"27. Responsibilities of office.
(1) A person to whom this Division applies has a duty to conduct himself in such a way, both in his public or official life and his private life, and in his associations with other persons, as not—
(a) to place himself in a position in which he has or could have a conflict of interests or might be compromised when discharging his public or official duties; or
(b) to demean his office or position; or
(c) to allow his public or official integrity, or his personal integrity, to be called into question; or
(d) to endanger or diminish respect for and confidence in the integrity of government in Papua New Guinea.
(2) In particular, a person to whom this Division applies shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by Subsection (1).
(3) It is the further duty of a person to whom this Division applies—
(a) to ensure, as far as is within his lawful power, that his spouse and children and any other persons for whom he is responsible (whether morally, legally or by usage), including nominees, trustees and agents, do not conduct themselves in a way that might be expected to give rise to doubt in the public mind as to his complying with his duties under this section; and
(b) if necessary, to publicly disassociate himself from any activity or enterprise of any of his associates, or of a person referred to in paragraph (a), that might be expected to give rise to such a doubt.
(4) The Ombudsman Commission or other authority prescribed for the purpose under Section 28 (further provisions) may, subject to this Division and to any Organic Law made for the purposes of this Division, give directions, either generally or in a particular case, to ensure the attainment of the objects of this section.
(5) A person to whom this Division applies who—
(a) is convicted of an offence in respect of his office or position or in relation to the performance of his functions or duties; or
(b) fails to comply with a direction under Subsection (4) or otherwise fails to carry out the obligations imposed by Subsections (1), (2) and (3),
is guilty of misconduct in office.
What should be the appropriate penalty?
18. The task of this Tribunal now is to determine appropriate penalty or penalties to be imposed and recommend to the appropriate authority. Before I do that, I must decide the issue of whether there was "serious culpability" on the part of the Leader or not and whether or not "the public policy and public good" require that the Leader should or should not be dismissed from the office he held.
19. I am of the view that the Leader's conduct in not complying with the requirement of s.4 of the OLDRL was reckless and he showed willful disrespect for the law that governs his conduct. He exhibited lack of respect to the Ombudsman Commission's notices and warnings on him being late with his submission of annual statements for the periods stated above.
20. On the issue of serious culpability and what should be the appropriate penalty, I ought to consider the misconduct in office in context of the overall circumstances of all the three charges. On misconduct in office, the Supreme Court in the Application by Gabriel Dusava (27.10.98) SC 581 said, the purpose of the Leadership Code is directed to "removing a person who is considered after due inquiry, to be unworthy of continuing in office."(See also SCR No.3 of 1986: Reference by Simbu Provincial Government [1987] PNGLR 15 and Haiveta v Wingti (No.3) [1994] PNGLR 197 at 217 to 218).
21. As Chairman of this Tribunal I must consider the issue of appropriate penalty and the essential aspect of deterrence must be considered in cases where leaders who hold high public positions who show disapproval of the law such type of conduct which exhibit glaring disrespect to the Leadership Code and the Organic Law on the Duties and Responsibilities of Leadership.
22. Earlier tribunal decision confirm the view that, where a Leader is found guilty of misconduct in office, a Tribunal on considering appropriate penalty must seriously consider dismissal from office unless it finds that there was or were no serious culpability and public policy and public good do not require dismissal: Jim Kas (27.9.2001), Application by John Mua Nilkare (15.4.97) SC536, Michael Nali (N0.2) and Peter Peipul-v-Hon Justice Sheehan, Orim Karapo & Iova Geita & Ors SCM 2 of 2002 (24.5.2002).
23. The three failures to file annual statements were committed one after the other between 17th April 2007 to 16th April 2008, 17th April 2008 to 16th April 2009 and 17th April 2009 to 16th April 2010. Obviously, the Leader would have learnt a lesson from the first warning given him by the Ombudsman Commission on the first period between 2007 and 2008.
24. On discussing breach of s.27(5)(b) of the Leadership Code, breach of submitting annual statements in time pursuant to s.4 of the OLDRL, the Tribunal in The Matter of Hon. Dr. Puka Temo CMG MP (2006) N3099 said at paragraphs 26 and 47:
"In this case, the filings of annual statements are not done in the public domain and in association with others. The Ombudsman Commission privately communicates with a Leader and the Leader also responds also in private. The Ombudsman Commission and its staff, owing to the nature of their functions, cannot be regarded as members of the public for this purpose. Formal investigations, for that matter, by the Ombudsman Commission are also kept in total confidence. Thus the public does not and cannot know if a Leader has failed to file an annual statement."
"Leaders and parliamentarians, who are the country's lawmakers, are expected to be leading by example in upholding the laws of the country. It is therefore, a serious matter when a Leader breaches a law. A Leader's breach of a law could have a far reaching effect on the manner in which the rule of law is perceived by the people. In this case, the Leader has breached a specific provision of the Organic Law on the filing of the annual statements. Such a breach and any breach of the Constitution or Organic Law by a parliamentarian for that matter is a serious misconduct."
25. The penalty regime provided for breaches of the Leadership Code and Organic Law on the Duties and Responsibilities of Leadership according to the Constitutional Planning Committee is to protect the people from corrupt conduct and improper practices by Leaders and that s.27 of the Constitution casts or provides a safe guard against misconduct to ensure that Leaders must not be seen to allow their public or official integrity, or their personal integrity, to be called into question: Application Pursuant to Section 155(4) of the Constitution Ref: John Mua Nilkare [1998] PNGLR 472.
26. On the instant case, what is the degree of blameworthiness on the part of the Leader? This is the question that this Tribunal will answer. On the instant case, the Leader breached a specific provision of the Organic Law by not filing his annual statement for three years. I agree with Mr. Henao that, any breaches either of the Leadership Code or the concerned Organic Law by parliamentarians or a Leader for that matter is a serious misconduct. Various Tribunals have expressed views and concerns that the Constitutional Planning Committee's aspirations about the Constitution which seeks to protect people of this country from misconduct by the leaders who represent them: In Re Leo Morgan [1978] PNGLR 460.
27. It is established law that when a Leadership Tribunal determines to impose an alternative penalty under the Leadership Code (Alternative Penalties) Act it must decide if there was serious culpability on the person found guilty of misconduct in office. It must then determine whether public policy and public good do or do not require dismissal: Major General Jerry Singirok-v-Hon. Justice Jalina, Cosmos Bidar & Regina Sagu and The State (21.3.2000) N2068 see also Peter Peipul-v-Hon. Justice Sheehan, Orim Karapo & Iova Geita & Ors SCM 2 of 2002 decision dated 24.5.2002.
28. The Supreme Court in the case of John Nilkare-v-The Tribunal (1997) SC 536 said that 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 part of an offender, in this case the Leader. I am of the view that failure to submit annual statements for three years one after the other involves serious culpability and such acts deserves censure. But apart from those three consecutive failures to submit his annual statements, there are no other allegations apart from the three which the Leader pleaded guilty to.
29. In consideration of the rational underlying the requirement to file annual statements, serious culpability may be found in instances where, there has been total failure on the part of a Leader to file the annual statements or where it is found to be false or misleading information in the annual statements. This may border on dishonest intent on the part of the Leader concerned: Hon. Dr. Puka Temu CMG MP (24.8.2006) N3099.
30. On the issue of public policy and public good, the Leader was appointed by the Independent Consumer and Competition Commission Appointments Committee pursuant to s.9 of the ICCC Act, the Leader's appointing authority. Dr. Manoka was qualified under s.11 of the Act to be appointed the Commissioner of the Independent Consumer and Competition Commission due to the trust and merits on qualities of leadership.
31. The Tribunal's task now is to decide on the degree of culpability on the part of the Leader and decide whether as a matter of national interest the public policy and public good requires or warrants dismissal from the office or an alternative penalty should be instead imposed under s.28 (1A)(a)(b) of the Constitution.
32. Determination of any penalty begins with consideration of s.27(5) of the Organic Law on Duties and Responsibilities of Leadership. It provides that if the Leadership Tribunal finds a Leader guilty of misconduct in office, it can either recommend to the appropriate
authority that the Leader be dismissed from the office he holds or recommend other penalty or penalties.
33. I have covered the issue of "serious culpability". I decide on the instant inquiry that there was serious culpability involved.
The Leadership Code itself provides that if there was no serious culpability, an alternative penalty may be imposed. I quote s.28(1A)(a)
& (b). It states:
"(1A) An Organic Law may provide that where the independent tribunal referred to in Subsection (1)(g) finds that—
(a) there was no 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."
34. To determination of any penalty the tribunal must consider s.27(5) of the Organic Law on Duties and Responsibilities of Leadership. It provides that if the Leadership Tribunal finds a Leader guilty of misconduct in office, it can either recommend to the appropriate authority that the Leader be dismissed from the office he holds or recommend other penalty or penalties.
35. On the instant case, I take into account counsels addresses on an appropriate penalty or penalties for the three charges. I have also read character references that were tendered by Mr. Henao. The references came from four persons who compiled character references which give sound background of Dr. Manoka and his standing in the community both in public affairs and the Leaders standing in the United Church. The reference came from the following people: Sir Moi Avei, Reverend Momoru Hedu, Mr. Peter Loko, Dr. Eric Enari Omuru. All the persons I have referred to are men of standing in the Government and their communities.
36. I note the terms of s.2 of the Leadership Code (Alternative Penalties) Act sets out in detail those alternative penalties as a fine up to K1, 000.00, a recognizance, suspension, reprimand, salary reduction or demotion. I am further of the view that, it would be erroneous to think that, this Tribunal has a free discretion as to when it should impose any of those alternative penalties, because s.28(1A) of the Constitution provides that alternative penalties may only be imposed when there is no serious culpability on the part the Leader either found guilty or as in the current case where the Leader himself pleaded guilty.
37. On this case, the Tribunal must decide if the public policy and public good do or does not warrant dismissal: In the Matter of the Reference by the Public Prosecutor and Hon. Edward Ramu Diro CBE, OStj, MP Unnumbered of 21st September 1991.
38. On the current case, I must ask two questions. First, can it be said that there is no serious culpability on the part of the Leader? Secondly, does the public policy and public good warrant dismissal? If this Tribunal decides against the Leader on the two questions then obviously we would have no alternative but to recommend dismissal: Re James Eki Mopio (9.12.81), see also In the Matter of Reference by the Public Prosecutor and in the Matter of Jim Kas (27.9.00) (Unnumbered judgment).
39. Whatever penalty the Tribunal imposes will depend on the circumstances of each case: Peter Ipu Peipul-v-Hon. Justice Sheehan & Ors (24.5.2002) SC706, see also Re: Hon. Peter Ipatas MP Governor, Enga Province (4.8.2006). The three allegations to which the Leader pleaded guilty are similar in nature for three consecutive years. I note from the facts and evidence presented to this Tribunal that the Leader's case did not involved total failure to lodge his annual statements as was in the case of Re: Timothy Bonga (30.4.96) where he did not lodge his annual statement for five consecutive years.
40. On the current case, I consider the totality principle and apply such principle to the Leader's allegations. I consider that the three allegations are serious. I consider the fact that, any penalties imposed lower than the maximum prescribed penalties would have the effect of diminishing vision or consideration by the Constitutional Planning Committee about the serious nature of offences committed by Leaders who are representatives of their people or of the Government offices they hold. The maximum penalty for any offences under the Leadership Code is dismissal from the Public Office held by a Leader.
41. Having considered the Leader's guilty plea to all the three charges and what I have referred to above, I consider imposition of the maximum fines of K1,000.00 for each count pursuant to s.2(a) of the Leadership Code (Alternative Penalties) Act 1976.
Decision on Penalty
42. MR. IGNATIUS KUREI, (Senior Magistrate): This Leadership Tribunal was appointed by the Chief Justice of Papua New Guinea on 20th February 2014 to inquire into and determine allegations of misconduct in office by the Leader Dr. Billy Manoka, Commissioner for Independent Consumer Competition Commission (I.C.C.C)
43. This Leadership Tribunal commenced on 24th March 2014. The Counsel Assisting the Tribunal presented the five allegations with Statement of Reasons. When the charges on five allegations were formally put to Dr. Manoka, the leader pleaded Not Guilty through his former counsel Mr. Sweeny, QC. It can be noted that this learned Q.C left in circumstances that leaves a lot to be desired.
44. On 16th April 2014, when the Tribunal resumed a senior counsel Mr. Henao announced his appearance for the leader, this indeed was some what a relief. Upon enquiry by the tribunal to both counsels on the status of the previous denials on the five allegations in the Reference. In response Mr. Kaluwin informed due to consultation with Mr. Henao, he (Mr. Kaluwin) has decided that 4th and 5th allegation are now withdrawn. This was confirmed by Mr. Henao and in doing so announced that his client has now changed his earlier plea, to pleas of guilty on the three remaining charges. That is the three charges of failure to submit his annual statements to the Ombudsman Commission.
45. Three remaining charges are for consecutive periods from 17th April 2007 to April 2008, and from 17th April 2008 to April 2009, and from 17th April 2009 to April 2010. The leader failed to furnish to Ombudsman Commission his annual statements for the above-said periods, thereby each respectively contravening Section 4 (6) (a) of Organic Law on the Duties and Responsibilities of Leadership (OLDRL). The tribunal in its wisdom accepted the leader's guilty plea on the three charges and announced the withdrawing of the other two, and recorded accordingly.
46. Briefly on the Constitutional Reference, pursuant to Section 18 (2) of the Constitution, Mr. Kupmain for Public Prosecutor, and Mr. Henao in consultation agreed that there ought to be a reference to Supreme Court for interpretation of Sections 28 (1)(g)(ii) and 28 (1A) of the Constitution and Section 27 (5) of the OLDRL and Section 12 (f) of the I.C.C.C Act 2002. Basically it was for the interpretation of Section 12 (f) I.C.C.C.A as it already provides for dismissal once a Commissioner under the said Act is found guilty by a leadership tribunal.
47. On 02nd July 2014 when the Tribunal reconvened, the learned counsels, consensually informed the Tribunal, the Supreme Court Reference will serve no good purpose as the circumstances have changed. This was due to the Parliament in May sittings have amended Section 12 (f) I.C.C.C.A (see Gazette No.6 of 2014).
48. Both counsels advanced reasons and pointed out Section 11 of the Criminal Code Act that is its effect. Also case law of Opai Kunangel –v- The State [1991] PNGLR 1. Generally view from the counsels is that it is now proper for the Tribunal to hear submissions on the penalty.
49. The Tribunal agreed on the respective submissions and hold the view that the amended provision Section 12 (f) of the ICCC Act
would be interpreted as dismissal to be recommended, as I partly outline Section 12 Disqualification from Office.
A Person is not qualified to be, or remain, a member of the Commission if he:-
(a)............
(b)............
©..............
(d).............
(e).............
(f) found guilty of misconduct in office (and recommended for dismissal)
under the Organic Law of the Duties and Responsibilities of Leadership.
50. In view of the said amendment to ICCCA (S.12 (f) the Tribunal heard respective submissions on penalty. Due to time factor Mr. Henao made a short oral submission, on the other hand Mr Kaluwin tendered a written 11 page submission and gave us the overview.
Facts and Evidence – Briefly
51. The three allegations, the Leader pleaded guilty are contained in the Statement of Reasons (SOR) filed together with the Reference. Also filed in the SOR is the Observation by Chief Ombudsman and the two Ombudsman including late Mr. John Nero. There are also relevant documents including the copies of correspondence between the Ombudsman Commission and the Leader.
52. Prior to Dr. Billy Manoka's appointment to hold leadership status, he was a senior academic at the University of PNG.
53. Dr. Manoka was appointed as part-time Associate Commissioner to I.C.C.C for five years by the Governor-General on 17th April 2008 acting in accordance with advice from Independent Consumer and Competition Commission, the appointing authority.
54. The appointment was gazetted on National Gazette number G83 dated 14th May 2008. By virtue of his appointment he become a "Leader" under Section 26 (1)(g) of Constitution and Section 1 of OLDRL.
55. The Part Time Associate Commissioner was revoked and Dr. Manoka was appointed Commissioner of I.C.C.C. on 5th May 2010 and gazetted in the National Gazette No. G99 dated 7th May 2010.
56. Upon becoming a leader he has the Constitutional duty to submit relevant returns to the Ombudsman Commission annually.
Submissions
Leaders Counsel Submission
57. As stated above Mr. Henao's submission was made orally, and straight to the issue of what appropriate penalty should be considered. It was stated that he had the benefit to read the Public Prosecutor's written submission and agrees with the conclusion, arrived at.
58. Basically Mr. Henao points out for his client that three leadership breaches are serious and his clients admits and will accept whatever alternative penalties imposed other than the ultimate penalty of dismissal.
59. The Counsel for the leader handed-up Character References made by four different prominent men namely:
Later here under, I will briefly touch on the above Character References.
60. What lingers in my mind from Mr. Henao's submission is that his client realizes that the leadership breached that he commit. It is indeed a serious matter and he be given a appropriate penalty.
Public Prosecutor's Submission
61. The Counsel Assisting the Tribunal Mr. Kaluwin eloquently addressed the tribunal on the following for our consideration:
Consideration for Appropriate Penalty
62. Final Report of the Constitutional Planning Committee, Ch. 3, the Leadership Code, paragraph 9, states that "people who have....been appointed to high office are where they are because of their talents, there energy and personal character. These same talents and personal characteristics that the leader possesses are, as it were instruments fitting him for his office."
63. I now turn to the Character Reference as tendered to the tribunal. I will be brief. Sir Moi Avei in paragraph three and last sentence says "In my personal dealings with him I can categorically say that he is a person of utmost integrity". The respected knight further states in paragraph four, the fourth and fifth sentences. "Although he is an economist, his analyses are far broader where policy implications. This a clear demonstration that his sensitivity to broader national and social issues affecting PNG".
64. Rev. Momoru Hedu says of the leader in third paragraph, first sentence of his reference "Dr. Billy's (Manoka) forthright and sensible reactions in all circumstances make him out to be a person anyone would want to have as a leader."
65. Mr. Peter Loko says of the leader in paragraph four, the first sentence "In his current job his responsibility requires him to meet strict deadlines which requires commitment and dedication."
66. Dr. Erick Omuru Ph. D says of the leader in paragraph three first sentence "During my association with Billy over the years, I have found him to be a competent Papua New Guinean academic, ......." In paragraph four, first sentence, "As a fellow Commissioner at I.C.C.C, I find Billy to be a no nonsense operator and a straight shooter when it comes to technical competence and performance......"
67. The four referees highly appraised the leader as "competent" "meets strict deadlines", "is a person of utmost integrity" and "a person anyone would want to have him as a leader."
68. To my mind Character References may be good for other purposes, as seen in this context in regards to the leader's misconduct in office character reference could go against him. In the sense that he is regarded highly in his field or his personal life. However when he fails to conduct himself as required by the leadership code, it conflicts with what is said of him as "competent" and "meets strict deadlines".
69. The Counsel Assisting the Tribunal ably took us through in his submission on various cases addressing on penalty. In SC140 – Constitutional Reference No 1 of 1978: Re Leo Morgen [1978] PNGLR 460. We are reminded that whatever the appropriate penalty is considered for the leader, it is not penalising the leader but for the protection of the people from improper conduct of the leaders.
70. In the case of Jim Kas it was said the purpose of the Leadership Code is to protect the people from corrupt conduct and improper practices by Leaders. Section 27 of the Constitution provides to cater for all types of misconduct by leaders who diminish the integrity of the office they hold.
71. In John Nilkare –v- The Tribunal (1977) SC 536, the Supreme Court said the word "culpability" "involves serious blame, an act involving wrongful intention or negligence, an act deserving censure". In other words culpability raises the issue of degree of blame worthiness insofar as how the leader conducts himself.
72. In considering serious culpability, as outlined by the Public Prosecutor's submission the overall circumstances of all the charges and ultimate punishment of dismissal be considered. As stated in the Application by Gabriel Dusava (27.10.98) SC 582, the Supreme Court said the reason for having Leadership Code is to "removing a person who is considered after due inquiry, to be unworthy of continuing in office".
73. In Peter Ipu Peipul –v- Hon Justice Sheehan, Mr Orim Karapo and Mr. Iova Geita (24.5.2002) SC706 it is stated, the Tribunal "starts with the premise that it shall recommend dismissal from office unless pursuant to S.29 (1A) (a) (b). It found that there was no serious culpability and that public policy and public good do not require dismissal."
74. In this case, the leader makes full admissions of guilt on three consecutive time periods he has failed to submit to the Ombudsman Commission his annual statements. The leader is highly educated and said to be competent when he fails to meet standards of conduct as outlined in Leadership Code, I can only echo what Mr. Henao for the leader said "it is a serious matter."
75. Now considering what has been said in National or Supreme Court and other Tribunals, and bearing in mind the consistency of Tribunal decisions on penalty, I cannot go pass the conclusion the Counsel Assisting the Tribunal had arrived at and the learned Counsel for the leader had agreed to.
76. In my conclusion, in the given circumstances the fair and just penalty/ies is the maximum fine for each count.
Decision on Penalty
77. MS. ROSIE JOHNSON (Senior Magistrate): The Reference from the Public Prosecutor comprised of 5 Allegations for failure to submit annual statements to the Ombudsman Commission on time. The Reference was presented to the Tribunal on 23rd March 2014 and the leader denied all the five (5) allegations.
78. The counsel for the leader Sweeney QC raised objections regarding the 4th and 5th allegations that they were introduced by the
Public Prosecutor and are not the allegations that the Ombudsman Commission referred to the Public Prosecutor. The Public Prosecutor
argued that they have evidence to prove the additional charges against the leader. He also asked the tribunal to immediately give
effect to S.28 Organic Law on Duties and Responsibilities of Leadership (OLDRL) and suspend the leader.
79. On 25th March 2014, the tribunal ruled that it accepts the Reference as it is and further ordered that the leader be suspended
from office with full pay. It was at this point that the tribunal adjourned and was informed in chambers by the leader and the Public
Prosecutor that the counsel assisting the leader has left to travel to Australia and an adjournment was sought to allow for the leader
to engage another counsel.
80. On 16th April 2014, when the tribunal convened Mr Henao made appearance for the leader. The tribunal was informed that instructions have changed and the leader pleads guilty for allegations 1, 2 and 3. Further that given the change in the leader's plea counsels have discussed and the Public Prosecutor has agreed to withdraw allegations 4 and 5which are Constitutional breaches. Upon confirmation by the Public Prosecutor allegations 4 and 5 were deleted from the Reference. The Statement of Reasons (SOR) was tendered and after the tribunal had perused it, announced that it was satisfied with what was contained in the SOR and confirmed the plea of guilty on the three (3) allegations.
81. At this juncture counsels raised pertinent legal issues and the tribunal filed a Reference (SCC (OS) 3 of 2014) in the Supreme Court pursuant to S. 18(2) of the Constitution. On 2nd July 2014, counsel assisting the leader informed the tribunal that the S.12(f) of the ICCC Act has been amended by Parliament and there was no reason to pursue the Reference and that it be withdrawn. The tribunal made its ruling on 4th July 2014 for the Reference to be withdrawn and directed counsels to address the tribunal on penalty. The tribunal has heard counsels on the issue of appropriate penalty. In this case the leader failed to furnish his annual statements for three consecutive periods from 17.4.2007 – 16. 4. 2008; 17.4.2008- 17.4.2009; 17.4.2009 – 16. 4.2010. Having heard counsels on submission on penalty I set out some of the relevant provisions to assist.
82. The leader is charged for failing to furnish annual statements for three periods. Section 4 (1) of the Organic Law on the Duties and Responsibilities of Leadership states that:
"Statement of income, etc.
(1) A person to whom this law applies shall –
(a) Within three months after Independence Day; or
(b) Within three months after becoming such a person,
As the case may be, and at least once in every period of 12 months while he remains such a person, to give to the Ombudsman Commission a statement to the best of his knowledge setting out, in respect separately of himself and his spouse and any of his children under voting age ..."
83. The leader is required by law to declare in his annual statement a whole lot of things provided under Section 4 (1) (a) to (h) assets including money, business connections, liabilities amongst others. This is a mandatory requirement and is a serious allegation of misconduct in office.
84. Having heard submissions on penalty, the Tribunal is obligated to complete its task to consider and deliberate on the issue of appropriate penalty or penalties. We are mindful that any penalty the Tribunal decides on will be in the form of a recommendation to the "appropriate authority" in terms of s.28(1A) of the Constitution and s.27(5)(a)(b) of the Organic Law on the Duties and Responsibilities of Leadership. The leader has admitted to all three allegations and he is therefore guilty of misconduct in office.
Relevant Penalty Provisions
85. Section 27(5) of the OLDRL states:
(5) If the tribunal finds that a person to whom this law applies is guilty of misconduct in office, it shall recommend to the appropriate authority that-
(a) he be dismissed from the 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.
86. Section 28(1A) of the Constitution states:
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 the person found guilty of misconduct in office; and
(b) public policy and public good do not require dismissal,
it may recommend to the appropriate authority that some other penalty provided by law be imposed.
87. The Leadership Code (Alternative Penalties) Act provides alternative penalties. Section 2 of the Act states:
The penalties that may be recommended and imposed under and for the purposes of Section 28(1A) of the Constitution and Section 27(5)(b) of the Organic Law are that the person found guilty of misconduct in office-
(a) be fined an amount fixed by the tribunal, not exceeding K1,000.00; or
(b) be referred to 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 announcement of the suspension; or
(d) be reprimanded; or
if he is a public office- holder as that expression is defined in Sch.1.2(1) of the Constitution, that, as determined by the tribunal; or
(e) he be reduced in salary; or
(f) if his conditions of employment are such as to allow for demotion- he be demoted.
88. From the above penalty provisions it is obvious that there are certain elements that are stated that must be considered in the light of the misconduct in office. These elements are "serious culpability", "public Policy" and "public good".
89. In order for the Tribunal to consider appropriate penalty or penalties, it must firstly ask itself, was there any serious culpability on the part of the leader. The phrase "serious culpability" has been widely interpreted by various tribunals in considering appropriate penalty or penalties.
90. I am mindful of the amendment to Section 27(4) of the OLDRL which now requires that due inquiry be conducted with legal formalities and in strict compliance with the rules and provisions of the Evidence Act. In this case the leader admitted or pleaded guilty to all three allegations in relation to annual statements and it's for this that penalty has to be decided on. We ask the question, does public policy and public good or good governance require the leader's dismissal from office?
91. In this case the leader failed to submit his annual statements for the periods 17.4.2007 – 16. 4. 2008; 17.4.2008- 17.4.2009; 17.4.2009 – 16. 4.2010 despite reminders by the Ombudsman Commission.
92. Culpability relates to the degree of blameworthiness on the leader. The tribunal is entitled to consider both aggravating factors and mitigating or factors in favor of the leader. The Tribunal notes the leader is very well educated and was a senior lecturer at UPNG prior to being appointed Commissioner of ICCC. He is hard working and is of good character. In aggravation is that the first and foremost duty of a leader is to comply with the Leadership Code which includes the duty imposed on the part of the leader to furnish his annual statements. In this case the leader failed to file for three periods despite the notices and reminders from the Ombudsman Commission requesting him to do so on numerous occasions.
93. In mitigation we also note that the leader was present all throughout the tribunal sitting. Further and most importantly are his admissions and his cooperation with the Tribunal and his constant appearance in all the proceedings. Further, it is also noted that he attends church regularly and is someone of high standing in the village and community. The tribunal also notes the leader regrets having failed to comply with statutory requirements under the Leadership Code. He also acknowledged the obligation on the leader to comply with the Leadership Code is serious and their conduct is subject to public scrutiny.
94. I have put my mind to the above considerations and other leadership cases and considered the penalties in cases similar to the
one now before the tribunal. In the case of Re Puka Temu he was fined. In Re Sir Michael Somare the Tribunal recommended suspended from office for 14 days without pay. In Re Arthur Somare the tribunal settled for the maximum fine and the leader was also fined. In Re Joseph Lelang he was also given the maximum fine of K1000.00 for each of the allegations of failing to submit annual statements to the OC.
18. In conclusion, the Tribunal is of the view that there is no serious culpability for what the leader did or failed to do and that the maximum fine be imposed.
Recommendation of penalty
95. For the foregoing reasons and in accordance with the relevant penalty provisions pursuant to s. 28(1A)(a) and (b) of the Constitution and s.27(5)(a) and (b) of the Organic Law on the Duties and Responsibilities of Leadership, and s.2 of the Leadership Code (Alternative Penalties) Act 1976., the tribunal recommends to the appropriate authority a fine of K1,000.00 for each of the allegations. The leader is fined a total
of K3000.00.
____________
Conclusion
96. The Tribunal is unanimous on the issue of penalty imposed and recommends maximum fines totaling K3, 000.00 to be paid by the leader.
The fines are to be paid within 7 days and the Tribunal further orders that the suspension order made against the Leader on 25th
March 2014 be lifted forthwith.
___________________________________________________________
The Public Prosecutor: Lawyers for the Prosecutions
Mr. H. Henao: Lawyer for the Leader
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