Knight, In re [2015] PGLT 3; N6234(LT) (1 May 2015)

N6234 (LT)

PAPUA NEW GUINEA

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

AND:

IN THE MATTER OF THE HONOURABLE RONNY BRUCE KNIGHT MP ("the Leader"), MEMBER FOR MANUS OPEN AND MEMBER OF MANUS PROVINCIAL ASSEMBLY

REFERENCE NUMBER LT.N0.2 OF 2014 (NO.2)

BEFORE:

HONOURABLE JUSTICE SALATIEL LENALIA -Chairman-
HISWORSHIP MR.IGNATIUS KUREI – Senior-Magistrate-Member-
HERWORSHIPMS. ROSIE JOHNSON – Senior –Magistrate-Member-
Waigani

2015: 20th March, 1st, 8th & 27th April & 1st May.

CONSTITUTIONAL LAW – Leadership Code – Misconduct in office – Decision on penalties after findings of guilty to four allegations out of five pleaded in the Reference – Breaches of Leadership Code – Allowing "integrity" of the Leader to be called into question – Diminishing respect for "integrity" of the government – Misappropriation – Diversion of public funds originally allocated for maintenance of the old MB Manus was used for an old outdated vessel – Whether such practice is appropriate under the Public Finance (Management) Act.

LEADERSHIP CODE – Application of public money must be applied to the best interest of for purposes for which the money has been granted and intended for by the National Government.

LEADERSHIP CODE – Though the moneys was applied for something to benefit the people of Manus the procurement process was illegal and not in accordance with the Public Finance Act as part of the money was spent to benefit personal interests and to the benefit of his associates and the advice by National Maritime Service Authority was not heeded by the Leader.

LEADERSHIP CODE – Intentional application of public monies forming part of funds under the control of Papua New Guinea Government – Had the money spent on a new vessel, could serve purpose to which it was granted – As found, District fund was spent on purchasing an unworthy sea vessel which costs so much money to carry out maintenance.

LEADERSHIP CODE – Misappropriation of public funds – Criminal in nature – Serious culpability on the part of the leader – Combined effect of Section 27 (1) (2) of the Constitution and Section 13 (a) & (b) and Section 15 (5) of the Organic Law on Duties and Responsibilities of Leadership, the Tribunal recommends dismissal from office – Leader recommended for dismissal

Cases cited:

Papua New Guinea Cases

Hon. Michael Nali MP Member for Mendi Open (2003) N2398
In the matter of the Tribunal appointed under s.27 (7) of the Constitution and in the matter of Hon. Dr. Puka Temu MP (2006) N3099
Peter Peipul v Sheehan & Ors (2002) SC 706
Matter of Leo Robert Morgan [1978] PNGLR
Re John Nilkare (1997) SC536
Reference by the Public Prosecutor and The Honourable Anderson Agiru MP (18.1.02) N
Reference by the Public Prosecutor, in the matter of Grand Chief Sir Michael Somare MP (21.3.2011) N4224.
Reference by the Public Prosecutor and The Hon. Peter Ipatas (4.8.06) N3078
Re Michael Nali (No.3) (2003) N2399
Re Public Prosecutor and in the matter of Gerard Sigulogo [1988-89] PNGLR 384
Re Public Prosecutor and Hon. Bernard Hagoria (3.9.2003) N2525
SC Reference No.2 of 1982, Reference by the Public Prosecutor [1992] PNGLR 336
The Matter of Tribunal Established under Section 27 of the OLDRL and In The 460
The State-v-Morobet Awit Koma & Peter Kevin [1987] PNGLR 262

Other case cited:

Overseas Caese
Naylor, Benzon & C. Ltd – Krainische Industries Gessillschaft (1918) 1 KB 331

Counsel:

Mr. C. Sambua, Lawyer Assisting the Tribunal.
Mr. G. Eagan, with Mr. M. Nale & Mr. N. Ako, Assisting for the Leader

1st May, 2015

1. THE TRIBUNAL: The Tribunal found Hon. Hon. Ronny Bruce Knight MP Member for Manus guilty on four charges or of allegations of misconduct in office. Two of them relate to misappropriation of public monies contrary to s.13 (a)(b), one for failure to disclose his interests when deliberating in meetings of the Manus JDP&BPC were made to engage his associates to negotiate for purchase of MV Trader Star contrary to s. 15 (5) of the Organic Law on Duties and Responsibilities of Leadership (OLDRL). The final allegation is a Constitutional breach pursuant to s. 27 (1) (2) of the Constitution.

2. The final stage of these proceedings requires this tribunal to determine what should be the appropriate penalty or penalties to be imposed and recommend to the appropriate authority being the Speaker of the Parliament. (See s.27 (6) OLDRL). Before we do that, we must decide the issue of whether there was any "serious culpability" or not on the part of the Leader and whether or not "the public policy and public good" require that the Leader should be recommended for dismissal or other penalties under s.2 of the Leadership Code (Alternative Penalties) Act 1976.

3. Under .27 (5) (a) or (b) of OLDRL, sit is a mandatory requirement that this tribunal must make a recommendation to the appointing authority either to dismiss the leader or recommend other penalties depending on whether, there was serious culpability or not. The above Section 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 &##160; &#ppropriate aute authorityority that—

(a) he be dismissed from office or positir
>(b) rmitt Sect8(1A)ther provisions relating to theo the Lead Leadershiership Codp Code) ofe) of the the ConstConstitution and in the circumstances set out in that subsection—some other penalty provided for by an Act of the Parliament be imposed."

4. Section 28(1)(g) and (1A) of the Constitution state:

"28. Further provisions.

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

(g) shall establish independent tribunals that—

(i) shall investigate and determine any cases of alleged or suspected misconduct in office referred to them in accordance with the Organic Law; and

(i) are required subject to Subsection (1A), to recommend to the appropriate authority that a person found guilty of misconduct in office be dismissed from office or position;

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

(a) there was no serious culpability on the part of a person found guilty of misconduct in office; and

(b) public policy and the public good do not require dismissal,

it may recommend to the appropriate authority that some other penalty provided for by law be imposed."

5. The Leadership Code (Alternative Penalties) Act provides for alternative penalties that may be impose on Leaders for breaches of the Leadership Code where there is no serious culpability. Section 2 of the above Act states:

"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 K1, 000.00; or

(b) be ordered by the appropriate authority to enter into his own recognizance in a reasonable amount, not exceeding K500.00, fixed by the tribunal that he will comply with Division III.2 (Leadership Code) of the Constitution and with the Organic Law during a period fixed by the tribunal, not exceeding 12 months from the date of the announcement, under Section 27(6) of the Organic Law, of the decision of the tribunal; or

(c) be suspended, without pay, from office or position for a period not exceeding three months from the date of commencement of the suspension; or

(d) be reprimanded, or if he is a public office-holder as that expression is defined in Section Sch.1.2 (1) of the Constitution, that, as determined by the tribunal—

(e) he be reduced in salary; or

(f) if his conditions of employment are such as to allow of demotion—he be demoted."

6. The above provision requires a tribunal to dismiss a leader from office or his position unless it finds that pursuant to s.28 (1) (A) of the Constitution that, first, there is no serious culpability on the part a leader and secondly, the "public policy and public good do not require dismissal" of the leader. Under such circumstances the tribunal may recommend other forms of penalty under s.2 of the Leadership Code (Alternative Penalties) Act 1976. The tribunal then makes appropriate recommendation to the appropriate appointing authority for either dismissal or other forms of penalty.

7. We have considered counsels submissions on what should be appropriate penalties. For the leader, Mr. Ako submitted that, the decision to purchase MV Trader Star was made by the Manus Joint District Planning and Budget Priorities Committee and it was a fine decision so that the boat could serve the interest of Manus people.

8. Counsel addressed the issue of serious culpability and what is meant by "public policy" and "public good" by quoting a number of cases including an overseas case of Naylor, Benzon & C. Ltd – Krainische Industries Gessillschaft (1918) 1 KB 331 at p. 342 where the Court there said, "public policy appears to mean the ideas which for the time being prevailed in a community as to the conditions necessary to ensure its welfare" and anything done contrary to such idea would be "injurious to the public interest...".

9. Counsel referred to a number of Papua New Guinea case law authorities some of which we will refer to in the course of this discussion. In his conclusion, counsel submitted that any penalties imposed on the Leader must reflect the JDP&BPC and PSTB compromised their functions and the Leader should not be dismissed from his office as he was not alone responsible. Counsel submitted that the tribunal should consider alternative penalties pursuant to s.2 of the Leadership Code (Alternative Penalties) Act 1976.

10. Mr. Sambua the counsel assisting the tribunal on the other hand addressed the tribunal on the serious culpability of the proven misconduct in office by the Leader. Counsel also cited and referred to many cases in his address and written submission. Mr. Sambua argues that the primary purpose of the Leadership Code is to preserve the people of Papua New Guinea from misconduct by its leaders.

11. Counsel submitted that the Leader being the Chairman of the JDP&BPC he was the one to be blamed and the Leader was culpable and his culpability was serious deserving censure and the penalty should be the tribunal should recommend dismissal from office.

What should be the Appropriate Penalty

12. The remaining task of this tribunal now is to determine whether its findings of misconduct in office, considered individually or in their totality constitute serious culpability so as to require it to recommend to the Speaker of Parliament to dismiss the Leader pursuant to s.27 (6) of the Organic Law on Duties and Responsibilities of Leadership. If it does not so find, it must go on to consider whether it can resort to any alternative penalties provided by s.28 (1A) of the Constitution.

13. There are a number of options open to the tribunal to decide as to what penalty should be impose on the Leader. Such penalties range from being dismissed from the public office prescribed by s28 (1.) (g) (i) of the Constitution and s.27 (5) (a) of the Organic Law on Duties and Responsibilities of Leadership or it may recommend other alternative penalties provided for under s.2 Leadership Code (Alternative Penalty) Act. Whatever penalty this tribunal will impose will depend on the circumstances of allegations on which the leader had been found guilty on.

14. The four allegations on which the Leader was found guilty on are serious and the issue is do the proven facts of misconduct in office require the offences should attract the maximum prescribed penalty: Reference by Public Prosecutor and Honourable Dr. Puka Temu MP (2.8.06) N3099.

15. The Leadership Code in s.28 (1A) of the Constitution sets out three serious elements of charges of misconduct in office by leaders. They include "serious culpability" "public policy" and "public good". In order for the tribunal to consider any appropriate penalty or penalties, it must ask itself, was there serious culpability on the part of the Leader Hon. Ronny Knight when he was negotiating for the purchase of the MV Trader Star.

16. The Leader has been found accountable for four serious allegations three of which were misappropriation of public monies. That being the case, does the "public policy and public good" require dismissal from the office he holds?

17. It is our view that, there is no question that the Leader was culpable for what he did by erroneously advising members of the Manus Joint District Planning & Budget Priorities Committee and the Manus Provincial Supply and Tenders Board about the sea worthiness of the MV Trader Star. It is clear from the findings of this inquiry that the Leader went against the advice from the National Maritime Safety Authority by applying pressure on the members of the JDP&BPC and PSTB.

18. Was such culpability sufficiently serious warranting dismissal from the public office he holds as required by s.28 (1) (g) (i) of the Constitution and s.27 (5) (a) of the Organic Law? The phrase "serious culpability" has been widely interpreted in various leadership tribunal cases on consideration of what penalty or penalties should be imposed.

Degree of Culpability

19. Culpability relates to the degree of blameworthiness on the offender and in this inquiry on the part of the Leader. Prior to imposing any penalty, this Tribunal must fix the "culpability" or "blameworthiness" on the offender. On determining this issue, the tribunal is entitled to take into account factors which aggravate the Leader's case and those matters which would be considered as extenuating circumstances in favour of the Leader.

20. In the Reference by the Public Prosecutor and The Honourable Anderson Agiru MP (18.1.02) N the Tribunal cited the criminal case of The State-v-Morobet Awit Koma & Peter Kevin [1987] PNGLR 262 at 263 where Wilson J said a starting point in deciding a penalty is to fix the issue of "culpability or the blameworthiness on the prisoner". (See also Reference by the Public Prosecutor and the Hon. Peter Ipatas (4.8.06) N3078.

21. On determining this issue, the Tribunal is entitled to take into account factors which aggravate the Leader's case and those matters which would be considered in favour of the Leader. (See Re John Nilkare (1997) SC536).

22. On this inquiry, we found that, the manner of approach taken by the Leader and procurement process of getting the money to fund the purchase of the vessel was improper. The Manus District spent so much money on an outdated vessel when such money could have been spent on purchasing a brand new vessel. In the deliberations with members of the JDP&BPC in their meetings, the Leader being the Chairman of board, he did not disclose the name of the Accounting Firm that he and his executive officer engaged to purchase the ship.

23. It our view, that, the action taken by the Leader involves and amounts to very serious culpability. We must say here that, the Leadership Code and the OLDRL imposes great high responsibilities on our Leaders and as such the leaders must live up to the standard required by the Leadership Code and the Organic Law.

24. The standard of "culpability" or "blameworthiness" would be almost as high as in criminal trials. The tribunal had already found that, the Leader was seriously culpable when dealing with moneys for purchasing MV Trader Star when he and his executive officer overestimated the inflated costs of maintenance and he did not disclose his interest to the Manus JDP&BPC and Provincial Supply & Tenders Board when negotiating the purchase of the vessel.

25. Bearing in mind, the amendment to s.27 (4) of the OLDRL requires that the due inquiry be conducted with legal formalities and in strict compliance with the rules of evidence and the provisions of the Evidence Act, we remind ourselves that, the decision before this Tribunal was and is not a sentence after a finding of guilty after a criminal trial.

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

27. The Constitutional Planning Committee in its Report was concerned about enforcement of the Leadership Code should not just be mere directives but it should be morally and legally binding on leaders. In Chapter 3 of their report at paragraph 43, it said something about misappropriation of funds in the following words:

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

28. On the issue of disclosure of interest in meetings and debates government agendas in meetings, at paragraphs 61 & 62, the Committee said:

"In the Parliamentary Integrity Ordinance there is a provision which requires a Member of the House of Assembly to disclose any financial interest which he has in any matter of which he wishes to speak in the House or in a committee of the House. We consider this to be an important rule which should be adapted for incorporation in the Code so that it applies to all leaders. A recommendation has been made accordingly.

An important effect of this rule will be to enable members of parliament, members of provincial assemblies etc. to better assess the weight which they should give to speeches made by their colleagues. Obviously if a member of parliament has a finical interest in a particular matter(sic), and he speaks in such away as to be effectively supporting his own interest, his speech will be given far less weight by his colleagues than would otherwise be the case and, we believe rightly so."

29. Many chapters in the C.P.C Final Report have been referred to in various tribunal judgments in the past. We will refer to some of those cases involving both serious and not serious culpability. For instance in the Reference by Public Prosecutor and Hon. John Nilkare MP (2.7.96) at page 52 the tribunal described "serious culpability" in this way, "It involves serious blame, an act involving wrongful intention or negligence, an act deserving censure". (See also The Honourable Anderson Agiru MP (18.1.02) and Reference by the Public Prosecutor and the Hon. Peter Ipatas (4.8.06) or Re Michael Nali (No.3) (2003) N2399 or that of re Peter Ipatas (2006) N3078.

30. The Leader was found guilty of misconduct in office for very serious breaches of the Leadership Code and the OLDRL. The manner and the process of getting the money to fund the projects nominated by the Leader and how the money was used was not proper and this amounts to serious culpability and borders on misappropriation. We must say here that, the Leadership Code and the OLDRL impose very great and high responsibilities on the leaders of this nation and as such the leaders must conduct themselves with dignity, integrity and honesty in all their walks of life, be it public or private.

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

32. The law on appropriate penalty is clear, there are a number of options open to the Tribunal to impose on the Leader. Such penalties range from being reprimanded to the ultimate penalty of dismissal from a public office. Whatever penalty this tribunal will impose will depend on the circumstances of each case and not all proven misconduct of office offences should attract the maximum prescribed penalty: Reference by Public Prosecutor and Honourable Dr. Puka Temu MP (2.8.06).

33. In a five men Supreme Court bench Reference on SC Reference No.2 of 1982, Reference by the Public Prosecutor [1992] PNGLR 336 the Court there comprising of Kidu CJ, Kapi Dep. CJ, Amet, Los & Andrew JJ accepted the referrer's submission and held that "the entire thrust and primary role of the Leadership Code is "to preserve the people of Papua New Guinea from misconduct by its leaders". Leaders have a duty not to conduct or place themselves in a position in which he or she could have a conflict of interest or where he or she might be compromised.

34. Earlier, in The Matter of Tribunal Established under Section 27 of the OLDRL and In The Matter of Leo Robert Morgan [1978] PNGLR 460, the Supreme consisting of Prentice C.J., Saldanha & Andrew, JJ at page 463 the Court quoted s.27 of the Constitution and at page 464 the Court commented:

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

35. On the instant inquiry, this tribunal asks itself, does public policy and public good require that the Leader on be dismissed from the office he holds? Dismissal is the ultimate penalty. Some misconduct in office offences are such that the obvious result of dismissal would be apparent while some may not be that clear.

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

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

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

38. We adopt the interpretation of the terms "public policy" and "public good" given by the Tribunal in Reference by the Public Prosecutor and Hon. Michael Nali MP (2003) N2399 where it cited quotes from a number of overseas cases which give interpretation of the above words.

39. The phrase "public policy" may be interpreted to mean the ideas or concepts of practice which prevails in a community for the time being to ensure its welfare and where anything is done against such practice may be treated as against the public policy and public good and actions which may border on criminal prosecution. On the instant Reference, we are of the view that, "public policy and public good" requires that the Leader be severely penalized.

40. We consider the fact that, the Leader is an elected representative of his people. There is no interpretation of the phrase "public policy and public good." The legislative scheme both in the Constitution and Organic Law nor any other legislation clarifies the above phrase.

41. Perhaps we can refer to the Chapter 3 of the final Report of the Constitutional Planning Committee which is devoted to the Leadership Code and which in our view highlights on the qualities that a Leader should have. Paragraph 7 of Chapter 3 of that report states:

"The members of the National Parliament are the elected representatives of all people of Papua New Guinea. They have been given their high position to represent the interest of their people, and not for their own special interests. What applies to ordinary members of parliament is even more applicable to those who hold ministerial office in the nation state. The Ministers of the nation hold high office and wide powers so that they may be better equipped to serve the people of their nation."

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

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

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

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

44. The tribunal's determination on the guilty findings on the allegations on which the leader was found guilty reveals glaring instances of very serious culpability on the part of the leader. We each have stated the seriousness of the misconduct in office by the leader in our judgments on verdict. We have found that there were clear breaches of s.27(1)(b)(c)(d) and (2) of the Constitution by the leader. The leader's case may be almost similar to that of Ref by the Public Prosecutor and Hon. Bernard Hagoria (3.9.2003) N2525. In that case, the tribunal said:

"But it seems to us, the way the "discretionary" funds have been administered in this case and perhaps in other cases too, is that the Member of Parliament has become, quite improperly, the chief and perhaps the sole critic administrator of this fund. He has improperly assumed the role of the chief planner, the sponsor or designer of projects, the approving authority, the accountant, the project supervisor and the paymaster."

45. In conclusion, in our final analysis we are of the view that the conduct of the leader amounted to serious culpability and the public policy and good require the tribunal to recommend that the leader be dismissed from office. We adopt what the Supreme Court said in Re Joseph Auna [1980] PNGLR 500 that the purpose of the Leadership Code is directed towards "removing a person who is considered, after due inquiry, to be unworthy on continuing in office".

46. We are of the consensus view that, the leader on these allegations is not worthy to continue to hold office. All leaders have a duty not to place themselves in position in which they could have conflict of interests where they might be compromised when discharging their duties, not to demean their offices or the positions they hold as was in this case. On this Reference, the leader had allowed his public, official, and personal integrity called into question

47. We agree in our views that the "public policy" and "public good" require the highest penalty to be imposed? We answer this question in the positive. Applying the totality principle to the proven allegations, the tribunal recommends that the leader be dismissed from office.

48. Having considered counsels submissions and address on penalty and the appropriate legislations our final analysis for and against the Leader, we are of the view that there was serious culpability or blameworthiness on the part of the Leader and the public policy and public good does require dismissal.

49. The tribunal reminds itself about the issue of dealing with multiple findings of guilty of misconduct in office by the Leader. We consider the "separate determination" and totality principal approach when coming to imposing penalties on multiple charges.

50. Applying the "totality of the circumstances" principle and the "totality of breach principle" approach as was in the case of Peter Ipu Peipul-v-Hon. Justice Sheehan, Orim Karapo and Iova Geita (24.5.2002) SMC of 2002, Re: Peter Ipatas, MP (2006) N3078, Re: Dr. Sir Puka Temu CMG MP (24.8.2006) N3099 we recommend the totality principle be applied because we have considered the highest penalty should be imposed.

51. The Leader is recommended to be dismissed from the office he holds as a Member for Manus Open Electorate.

Conclusion

52. Pursuant to s.27 (6) of the Organic Law on duties and Responsibilities of Leadership, a covering letter and copy of this decision shall be forwarded to the Speaker for presentation to the National Parliament and the National Executive Council.

DATED THIS 1st DAY OF MAY 2015

........................... Ms. R. Johnson Member

................................ Justice S. Lenalia Chairman

.................................... Mr. I. Kurei Member

__________________________________________________

The Public Prosecutor: Lawyer Assisting the Tribunal
Jema Lawyers: Lawyer for the Leader.