In the Matter of Hon Solan Mirisim MP [2021] PGLT 1; N9332(LT) (2 December 2021)

N9332 (LT)

PAPUA NEW GUINEA
[IN THE LEADERSHIP TRIBUNAL]

LT NO. 01 OF 2021

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

IN THE MATTER OF HON. SOLAN MIRISIM MP, MEMBER FOR TELEFOMIN OPEN, WEST SEPIK PROVINCIAL ASSEMBLY

Waigani: The Honourable Justice Gavara-Nanu – Chairman
His Worship – Mark Selefkariu – DCM
Her Worship – Josephine Kilage – SM

2021: 16^th June, 16^th, 20^th, 21^st, 22^nd, 27^th, 28^th, 29^th, and 31^st July, 16^th August, 6^th September, 17^th, 19^th and 29^th November, 1^st and 2^nd December.

LEADERSHIP TRIBUNAL – Allegations of misconduct in Office - Plea of guilty to one allegation - Constitution; s. 28 (1A); Conduct of the Leader -No serious culpability - Public policy - Organic Law on Duties and Responsibilities of Leadership; ss. 27 (5); - Leadership Code (Alternative Penalties) Act, Chapter No. 1A; s. 2 - Alternative penalties - Appropriate penalty.

Cases Cited:

In re Nali (No.3) [2003] PNGLR 19
Re Peter Ipatas [2006] N3078.

Counsel:

G. Sheppard with P. Tabuchi, for the Leader
P. Kaluwin with D. Kuvi, for the Referrer

2^nd December, 2021

1. BY THE TRIBUNAL: In a Reference to the Tribunal dated 16 June, 2021 the Public Prosecutor (Referrer) brought 22 allegations of misconduct in Office against Hon. Solan Mirisim, MP, (Leader). When the allegations were put to the Leader on 20 July, 2021, the Leader pleaded guilty to allegation 1 but pleaded not guilty to the remaining 21 allegations.
   
2. The Tribunal then proceeded to inquire into the 21 allegations. In the course of the hearing, the Referrer withdrew allegations 11, 12 and 13 which resulted in these allegations being struck out by the Tribunal. On 17 November, 2021 the Tribunal in its decision on verdict found the Leader not guilty of the remaining 18 allegations.
   
3. Allegation 1 is in these terms:
   

Allegation 1: DECLARATION OF FALSE AND MISLEADING INFORMATION IN THE ANNUAL STATEMENT FOR 2011/2012 AND 2012/2013.

THAT between the 5th November, 2012 and on the 12th November 2013 the leader failed to carry out the obligations imposed by Section 4 (1) (b) of the Organic Law on the Duties and Responsibilities of Leadership

IN THAT he knowingly recklessly or negligently provided information in the Annual Statements of period 1st August 2011 to 31st July 2012 and 1st August 2011 to 31st July 2012 that were false, misleading or incomplete in a material particular by declaring incorrect dates of births for his spouse and children

THEREBY being guilty of misconduct in office under Section 4 (6) (b) Organic Law on the Duties and Responsibilities of Leadership.

Submissions

4. On 19 November, 2021, the parties made submissions on penalty regarding allegation 1. Mr. Sheppard, counsel for the Leader submitted that there was no serious culpability in the conduct of the Leader and the breach by the Leader fell at the lower end of the prescribed alternative penalties under s. 2 of the Leadership Code (Alternative Penalties) Act, Chapter No. 1A. It was submitted that from the prescribed alternative penalties, the appropriate penalty for the Leader is a reprimand.
   
5. Mr. Sheppard submitted that nothing turned on the breach which is based on the misstatement of the dates of birth for the Leader’s children and spouse. The breach was not repetitious and that, when the mistakes were brought to the attention of the Leader, they were corrected. Mr. Sheppard further submitted that no prejudice was caused to anyone by the breach, including the Ombudsman Commission (OC), the State and the general community. It was submitted that this was a type of breach that could have been easily rectified simply by the OC discussing it with the Leader. For these submissions, reliance was placed on, In re Nali (No.3) [2003] PNGLR 19 and Re Peter Ipatas [2006] N3078.
   
6. Mr. Kaluwin, counsel for the Referrer conceded that the circumstances of the case did not warrant dismissal from Office but argued that given that the breach involved false declarations by the Leader in his Annual Statements, the Leader was negligent and even reckless. The Leader had the duty to give true information regarding the dates of birth for his children and spouse in his Annual Statement to the OC. Mr. Kaluwin argued that given that the breach was based on false declarations by the Leader, the appropriate penalty is a fine.
   

Law

7. Section 27 (5) of the Organic Law on Duties and Responsibilities of Leadership (Organic Law) provides:

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.

8. Section 28 (1A) of the Constitution provides:
   

(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 public good do not require dismissal, it may recommend to the appropriate authority that some other penalty provided for by law be imposed.

9. The Leadership Code (Alternative Penalties) Act, Chapter No. 1A, relevantly provides in the preamble and ss. 1 and 2 as follows:
   

Being an Act to implement Section 28(1A) (further provisions) of the Constitution and Section 27(5)(b) of the Organic Law on the Duties and Responsibilities of Leadership by providing for penalties, other than dismissal, for misconduct in office.

1. Interpretation.

In this Act—

"the appropriate authority" has the same meaning as in Section 27(7) of the Organic Law;

"the Organic Law" means the Organic Law on the Duties and Responsibilities of Leadership;

"the tribunal", in relation to a person found guilty of misconduct in office, means the tribunal referred to in Section 27 of the Organic Law, that found him guilty.

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.

Reasons for decision

10. As can be seen from the list of prescribed alternative penalties under the Leadership Code (Alternative Penalties) Act, a fine appears to be more serious than a reprimand.
    
11. It is important to note that pursuant to s. 28 (1A) of the Constitution, the Referrer having conceded that dismissal from Office is not the appropriate penalty for the Leader has also conceded that the breach did not amount to a serious culpability and public policy and public good do not require dismissal of the Leader from Office.
    
12. Thus, the issue for the Tribunal to determine is the type of alternative penalty that should be imposed on the Leader as his appropriate penalty. It is an established principle of law that the penalty imposed on the Leader must fit the breach (offence committed). This issue turns on the facts of the case.
    
13. The Tribunal notes that the Leader gave wrong dates of birth for his children and spouse twice. First was in his Annual Statement for 2011/2012. Second was in his Annual Statement for 2012/2013.
    
14. When the OC discovered the different dates of birth given by the Leader for his children and spouse in the two Annual Statements, it requested the Leader on 30 May, 2016 to provide the birth certificates of his children and spouse. The mistakes were corrected by the Leader after the OC pointed out the mistakes to the Leader.
    
15. We also note that in correcting the mistakes, the Leader produced the birth certificates for his children and spouse which the OC requested. Thus, the mistakes were corrected by the Leader at the prompting of the OC.
    
16. The Annual Statements of Leaders are not ordinary documents. Pursuant to s. 4 of the Organic Law, every leader to whom the Leadership Code applies under s. 26 (1) of the Constitution must submit Annual Statements every year. The Annual Statements relate to the leaders' duties and responsibilities and they impose serious responsibility on every leader to provide truthful information about themselves in their Annual Statements. This is clearly reflected by the Leaders being required to declare in their Annual Statements that information they give in their Annual Statements are true, correct and complete in every detail and that they disclose full and complete statement of all the matters and information required to be disclosed under s. 4 of the Organic Law.
    

17. In this case, the Leader in essence made false declarations twice regarding the dates of birth for his children and spouse. Thus, there was a repeat of the breach.

18. Whilst we accept Mr. Sheppard's submission that the issue could have been resolved through dialogue between the OC and the Leader, in our opinion the OC had properly exercised its power in deciding to enforce the requirements of the Leadership Code, given that the breach had occurred twice.

19. The seriousness of the breach (offence) lies in the fact that the mistakes or the misstatement of the dates of birth for the Leader’s children and spouse occurred twice. There was no reasonable explanation given by the Leader for those mistakes. We accept Mr. Kaluwin’s submission that there was an element of recklessness in the conduct of the Leader because the Leader declared in the two Annual Statements that all the information in the Annual Statements were true when they were not.

20. In the circumstances, we are of the view that a reprimand would be too lenient. We consider that a fine would be the appropriate penalty. The maximum fine the Tribunal can impose is K1,000.00. However, we consider that a lesser amount of fine should be imposed on the Leader for two reasons. First, we accept Mr. Sheppard’s submission that the breach did not affect or prejudice anyone, including the OC, the State, and the community at large. Second, the allegation to which the Leader pleaded guilty did not plead any fraudulent intention by the Leader. There is no evidence of ulterior motive for the mistakes. On evidence, they were simply careless and reckless mistakes.

21. In the circumstances, we consider that the appropriate penalty for the Leader is a fine of K500.00., which we now impose.

22. The Leader is to pay the fine at the National Court Registry forthwith. Immediately upon payment of the fine, the Leader must serve a certified copy of the receipt for the payment of the fine on the Public Prosecutor, the OC and the Speaker of the Parliament.

23. Upon payment of the fine, the Leader's suspension from all leadership duties will be automatically lifted. The Leader can then attend and perform all his leadership duties, including duties as the Member for Telefomin Open electorate. Thus, it is important that copies of the receipt for the payment of the fine be served forthwith on the Public Prosecutor, the OC and the Speaker of the Parliament.

24. The orders of the Tribunal are:
1. The Leader is fined K500.00.
2. The fine is to be paid at the National Court Registry forthwith.
3. A certified copy of the receipt for the payment of the fine be served forthwith on the Public Prosecutor, the OC and the Speaker of the Parliament.
4. The Leader's current suspension from duties will be automatically lifted upon payment of the fine as ordered herein and upon service of the certified copies of the receipt for the payment of the fine on the the Public Prosecutor, the OC and the Speaker of the Parliament.
5. The effect of Order 4 above is that upon payment of the fine and immediately upon service of the receipt for the payment of the fine on the Public Prosecutor, the OC and the Speaker of the Parliament, the Leader is entitled to perform all his leadership duties and responsibilities, including duties as the Member for Telefomin Open electorate.

Orders accordingly.
__________________________________________________________________
Public Prosecutor: Lawyers for the Referrer
Young & Williams Lawyers: Lawyers for the Leader