In the Matter of Hon. Solan Mirisim MP [2021] PGLT 4; N9315(LT) (17 November 2021)

N9315(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 SECTION 27 (2) OF THE ORGANIC LAW ON THE DUTIES AND RESPONSIBILITIES OF LEADERSHIP

AND

IN THE MATTER OF HON. SOLAN MIRISIM MP, MEMBER OF 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 31^st July, 16^th August, 6^th September & 17^th November

LEADERSHIP TRIBUNAL – Practice & Procedure – Organic Law on Duties and Responsibilities of Leadership ss. 4, 17 (d), 27 and 28 – Constitution; ss. 27, 29(1), 31(1),50, 59 and 177(1)(b) – Misconduct in Office – Suspension – Powers and Functions of Leadership Tribunal – Reference by the Public Prosecutor.

LEADERSHIP TRIBUNAL – Organic Law on Duties and Responsibilities of Leadership – Ombudsman Commission – Powers and Functions of Ombudsman Commission– Annual Statements – Leader – Natural Justice.

LEADERSHIP TRIBUNAL - Allegations of misconduct in Office - Evidence - Standard of proof - Unverified documentary evidence - Need corroboration - Lacking credibility.

Cases Cited:
Andrew Kumbakor, Member for Nuku (2003) N2363
Application Pursuant to s. 155 (4) by John Mua Nilkare [1998] PNGLR 472
In the Matter of A Reference by the Public Prosecutor and In the Matter of Hon. Solan Mirisim, MP [2021] PGLT 3; (2021) N9276(LT)
In the Matter of Grand Chief Sir Michael Somare (2011) N4224
James Eki Mopio [1981] PNGLR 416
Re Kedea Uru [1988-89] PNGLR 226; N730
Re Peter Ipatas [2006] N3078
SCR No.2 of 1982; Re Kunangel [1991] PNGLR 1
Special Reference by the Attorney General Pursuant to Constitution Section 19 (2016) SC1536

Counsel:
P. Kaluwin & D. Kuvi, for the Referrer
G. Sheppard & T. Tabuchi, for the Leader

17^th November, 2021

1. BY THE TRIBUNAL: Pursuant to s. 177 (1) (b) of the Constitution and s.27 (2) of the Organic Law on Duties and Responsibilities of Leadership (Organic Law) the Public Prosecutor (Referrer) in a Reference to the Leadership Tribunal (Tribunal), dated 16^th June, 2021, brought 22 allegations of misconduct in Office (allegations) against Hon. Solan Mirisim, MP (Leader).
   

Introduction

2. The Reference is based on the matter referred to the Public Prosecutor by the Ombudsman Commission (OC) after the OC was pursuant to s. 29 (1) of the Constitution and ss. 17 (d); 20 (4) and 27 (1) of the Organic Law purportedly satisfied that there was a prima facie case that the Leader had been guilty of misconduct in Office.
   
3. The Leader pleaded guilty to allegation 1, but not guilty to the remaining 21 allegations.
   
4. In all the allegations, the Leader is alleged to have breached s. 27 (5) (b) of the Constitution and ss. 4 (6) (a) and (b); 5 (1) and 6 (2) of the Organic Law.
   
5. In allegation 1, it is alleged that the Leader knowingly, recklessly or negligently declared in his Annual Statement for the period from 1^st August, 2011 to 31^st July, 2012, false and misleading information regarding dates of birth for his spouse and children.
   
6. The remaining 21 allegations are based on purported failures by the Leader; to declare his income and other benefits in his Annual Statements; to submit the 2013/2014 Annual Statement; to declare personal interests in Motop Business Group Inc., Motop Trading and Rain Fox Trading in his capacity as Chairman, shareholder, owner and manager of the three entities; to lodge salaries and wages taxes and Goods and Services Taxes (GST) with the Internal Revenue Commission (IRC) for the three entities; to declare income for his spouse; used personal bank accounts to conduct business transactions and interference in the appointment process of the Secretary for the Department of Defence.
   
7. Regarding the allegations relating to the Leader's three business entities, it is alleged that the Leader as the Member for Telefomin Open, chaired the Telefomin District Planning and Budget Priority Committee (TDPBPC) meetings in which he directed and stressed that the TDPBPC engage the business entities in public works and other service delivery projects and remunerate the entities for their services. Thus, personally benefiting from the engagement of the business entities.
   
8. As to the allegation that the Leader interfered in the appointment of the Secretary for Defence, it is claimed that the Leader tried to influence the appointment process by making certain recommendations in a letter to the appointing authority.
   

Evidence

9. The Referrer called three witnesses. First was the Chief Ombudsman, Richard Pagen his evidence relates among others, to the alleged failures by the Leader to submit his 2013/2014 Annual Statement and to declare certain matters regarding certain information he gave in his Annual Statements. The second witness was Darren Kuveu, a Team Leader for Domestic Revenue Intelligence Division in the IRC. His evidence relates to the duty of the Leader to lodge salaries and wages taxes and GST for his business entities. The third witness was Dr. Ken Ngangan, the Secretary for the Department of Finance. His evidence relates to the Leader’s role in chairing the TDPBPC meetings and disbursement of funds to service providers and funding of projects in his electorate. The evidence is comprised solely of documents provided to the Department of Finance by the Telefomin District Office. The other witness was Asher Waffie, who is a Senior Legal Officer with the Bank South Pacific (BSP). His evidence is in an affidavit and relates to the bank statements of the Leader and his spouse which allegedly contained undeclared income for the Leader and his spouse.
   
10. At the close of the prosecution case, Mr. Greg Sheppard of counsel for the Leader made a ‘no case’ submission. The Tribunal held that the application was incompetent and an abuse of process because it was based on principles applicable to ‘no case’ submissions in criminal trials. The Tribunal was of the view that the proper mode of making a 'no case' submission for the purposes of stopping the Tribunal from investigating the matter further is by way of an application for summary dismissal. However, such applications should only be made in very clear cases where the matter before the Tribunal has no factual or legal basis. In this case, the Tribunal was of the view that the issues raised in the allegations were serious and contentious and the Tribunal had the duty to investigate the allegations properly and fully for which the Leader had to be heard. The Leader was therefore called upon to answer to the 21 allegations. See, In the Matter of A Reference by the Public Prosecutor and In the Matter of Hon. Solan Mirisim, MP (2021) N9276.
    
11. It is convenient at this juncture to refer to three events which we consider impact on the matter that is before the Tribunal.
    
12. The first event occurred on 28 February, 2013, when the Leader made a written request to the OC to be allowed to hold or purchase shares or investments in a foreign enterprise or a PNG business. The OC approved the request more than 3 years later in a letter (to the Leader) dated 14 June, 2016.
    
13. The second event occurred when the Chief Ombudsman was giving evidence in-chief. Mr. Kaluwin of counsel for the Referrer informed the Tribunal that Exhibit 58 to the Chief Ombudsman’s affidavit needed amendment. After the Tribunal told him that any amendments to Exhibit 58 would amend the Chief Ombudsman’s affidavit which had already been accepted by the Tribunal, he then applied for a short adjournment. When the Tribunal resumed hearing, the Chief Ombudsman filed a supplementary affidavit with amendments to Exhibit 58.
    
14. The third event occurred after the Leader’s ‘no case’ submission was refused by the Tribunal. Mr. Kuvi, who by this time had assumed the role of the counsel for the Referrer after Mr. Kaluwin withdrew due to issues with his eyesight; informed the Tribunal that he was withdrawing allegations 11, 12 and 13 for being misconceived. Thus, leaving only 18 allegations for the Leader to defend.
    
15. The Leader was the only defence witness.
    
16. At the close of the defence case, the hearing was adjourned for counsel to prepare their final submissions. The parties were directed among others, to address the Tribunal on whether the amendments to Exhibit 58 to the Chief Ombudsman’s affidavit and the withdrawal of allegations 11, 12 and 13 affected the Reference.
    

Submissions

17. In his final submission, Mr. Sheppard argued that amendments to Exhibit 58 to the Chief Ombudsman’s affidavit and the withdrawal of allegations 11, 12 and 13 effectively amended the Reference thus the Reference is defective and should be dismissed. Mr Kuvi on the other hand submitted that there is evidence that the Leader is guilty of misconduct in Office and the Tribunal should find the Leader guilty of the remaining 18 allegations. He argued that it is mandatory for the Leader to comply with the requirements of the Leadership Code and in this case, the conduct of the Leader fell far short of the standard required of him by the Leadership Code and the Constitution under s. 27.
    

Reasons for decision

18. The Reference is based on the Statement of Reasons provided by the OC to the Public Prosecutor for its opinion that there was a prima facie case that the Leader had been guilty of misconduct in Office regarding all the allegations. The referral of the matter to the Public Prosecutor by the OC was made pursuant to s.27 (2) of the Organic Law and ss. 177 (1) (b) and 28 (g) of the Constitution. All 22 allegations are based on the material provided by the OC to the Public Prosecutor, including the Statement of Reasons.
    
19. It is convenient at this juncture for the Tribunal to address allegation 22 because it can in our view be easily disposed of. It is alleged that between 24 November, 2017 and 1^st July, 2019, the Leader interfered in the appointment process of the Secretary for the Department of Defence, thus conducting himself in breach of s. 27 (1) (b) and (c) of the Constitution. However, under cross-examination the Chief Ombudsman conceded that the letter by the OC to the Secretary for the Department of Personnel Management (DPM) and the letter by the Leader to the DPM which the OC relied upon for this allegation were omitted from the Statement of Reasons because the OC was focusing more on the Leader’s Annual Statements. The two letters were subject of a contested application by Mr. Kaluwin in which an order was sought from the Tribunal for the production of the two letters before the Tribunal. The application was refused, the Tribunal ruled that the documents should have been part of the Statement of Reasons.
    
20. The two letters are pivotal to this allegation, thus their omission from the Statement of Reasons is fatal to the allegation. Without the two letters the allegation is a mere speculation because the Referrer had no supporting evidence to bring the allegation. Thus, the allegation has no merit and should be dismissed.
    
21. Allegations 11, 12 and 13, relate to the alleged failures by the Leader to lodge salaries and wages taxes and GST for his business entities. We find the withdrawal and the subsequent striking out of these allegations by the Tribunal effectively rendered the evidence of Darren Kuveu nugatory and therefore unnecessary for determination by the Tribunal.
    
22. This leaves the Tribunal to consider the evidence of the Chief Ombudsman, Dr Ken Ngangan, and Asher Waffie. Notably, the evidence of Dr. Ken Ngangan is comprised solely of documents relating to TDPBPC meetings which the Leader chaired to discuss public works and various projects in the Leader's electorate and the disbursement of the DSIP funds to fund those works and projects.
    
23. The evidence from the three witnesses must be reliable, clear, strong and convincing for the Tribunal to find the Leader guilty of the remaining 17 allegations. The standard of proof carried by the Referrer to prove the allegations is above the civil standard of proof viz; on the balance of probabilities and close to the criminal standard of proof, viz; proof beyond reasonable doubt. See, James Eki Mopio [1981] PNGLR416; Re. Kedea Uru [1988-89] PNGLR 226; N730 and Andrew Kumbakor, Member for Nuku (2003) N2363. In James Eki Mopio the Supreme Court in reiterating the standard of proof required to prove allegations of misconduct in Office against a leader said:
    

“In our view there is no absolute degree or standard of proof to be applied by the Leadership Tribunal. The Tribunal must be reasonably satisfied of the truth of the allegations or denials. In reaching such a conclusion it must give full weight to the gravity of a charge of misconduct in office by a person subject to the Leadership Code, the adverse consequences which follow and of the duty to act judicially and in compliance with the principles of natural justice. In practical terms the standard is not as high as the criminal proof beyond reasonable doubt but in our opinion, the very nature of the offence of misconduct in office created by the Constitution and the Organic Law on the Duties and Responsibilities of Leadership, will require a higher standard of proof than that ordinarily applicable in civil cases, namely proof on a balance of preponderance of probabilities. In matters involving accusations amounting to criminal conduct, the standard must be close to that applicable in a criminal trial”.

24. Applying this standard of proof, the Referrer must adduce evidence from which the Tribunal can make findings of fact and draw reasonable inferences regarding an allegation against the Leader. Evidence not meeting this standard would leave the allegations mere speculations and assumptions. See, Andrew Kumbakor (supra).
    
25. Turning to the evidence of Dr. Ken Ngangan, Mr. Kuvi conceded that the material relied upon by Dr Ngangan may not correlate with the Statement of Reasons. We are not surprised by this concession because the material relied upon by Dr Ngangan does not appear to corroborate the Statement of Reasons. It is also noted that some of the material in the Statement of Reasons are illegible.
    
26. Notably, Dr Ngangan was not able to give any first-hand evidence on how those funds were disbursed and what transpired during the TDPBPC meetings, because he did not witness or participate in those events. Such evidence could only be given by the people who attended and witnessed those meetings and or prepared the documents, including the Minutes of the meetings. The people who witnessed and attended the meetings and prepared the documents were not called by the prosecution. The evidence of Dr Ngangan required verification and corroboration by such people. Without such evidence Dr Ngangan's evidence remains mere speculations and assumptions. See, In the Matter of Grand Chief Sir Michael Somare (2011) N224.
    
27. We also note that most, if not all the documents relied upon by Dr Nagangan were submitted to the OC at the request of the OC and are part of OC's Statement of Reasons. In our view the Reference is affected by such documents.
    
28. We note further that under cross-examination, Dr Ngangan conceded that the Leader as the Member for Telefomin Open had the authority to chair TDPBPC meetings. Dr Ngangan further conceded that the disbursement of the DSIP funds were subject to Section 32 Officer's approval. There is no evidence before the Tribunal that such approvals of the disbursement of the DSIP funds by the Section 32 Officer were influenced by the Leader. These concessions by Dr Ngangan must therefore be considered in favour of the Leader. See, SCR No.2 of 1982, Re Kunangel [1991] PNGLR 1.
    
29. Regarding the evidence of Asher Waffie, the matters deposed to in his affidavit comprise solely of the bank statements which show certain deposits in the accounts held by the Leader and his spouse with BSP which the Leader allegedly failed to declare as his or his spouse's income in the Leader's Annual Statements. In our opinion the bank statements on their own cannot be relied upon as proof of undeclared income of the Leader or his spouse. Without any independent supporting evidence, the evidence lacks credibility.
    
30. The Leader has denied that the deposits in the bank statements were his or his spouse's income. He explained that various deposits in his personal account were reimbursement of monies he paid for meetings or charter of planes and so on. There is evidence that the Leader chartered a plane for a meeting of leaders from his electorate in Kiunga. He paid for accommodation and meals for those who attended the meeting. He also explained that certain deposits in his spouse's accounts were monies given to her by women from his electorate to purchase certain things in Port Moresby for those women. Some of the deposits were her entitlements from her previous employment.
    
31. The evidence of the Leader has not been countered or challenged by the prosecution. The prosecution has therefore failed to prove that the deposits were undeclared income for the Leader and his spouse. The deposits in the bank statements like the documents relied upon by Dr Ngangan needed verification and corroboration by independent evidence that they were income for the Leader or his spouse. The OC had power under s. 21 (3) of the Organic Law to summon persons with supporting evidence to appear before it and provide the evidence needed but no such persons were summoned.
    
32. It follows that the allegations based on undeclared income, benefits from the Leader's business entities, including benefits the Leader allegedly received as the Member for Telefomin Open are all based on mere speculations and assumptions.
    
33. Regarding allegation 4 which relates to the alleged failure by the Leader to submit 2013/2014 Annual Statement, the OC in a letter with the heading- ‘right to be heard’ - to the Leader dated 6 April, 2020, told the Leader that the blank Annual Statement for him to fill and submit was sent to the Parliament Post Office and was received by a person called Philip Kagume on 14 July, 2014 at 10.30am and was delivered to his office. The OC found the Leader failed to write or call the OC to explain why he did not submit the Annual Statement, viz; whether he misplaced it, or lost it and whether he needed another copy. The OC claimed the Leader instead maintained total silence.
    
34. In his written response to the OC dated 13 May, 2020, the Leader told the OC that he did not know Philip Kagume and could not remember receiving the blank Annual Statement. He said even if the person called Philip Kaugume delivered the Annual Statement to his office, he did not receive it. He said he checked with his Parliamentary staff, and they all denied receiving the Annual Statement. The Leader said he was fully aware of his duties and responsibilities and would have submitted the Annual Statement had the OC reminded him that he had not submitted the Annual Statement. He said he was still willing to submit the Annual Statement. The Leader’s written response was received by the OC on 18 May, 2020.
    
35. In another letter by the Leader to the OC dated 16 April, 2020, the Leader reiterated that he did not receive the Annual Statement, he said it may have been misplaced by the Parliament staff. He said he had engaged an accounting firm to prepare his Annual Statements to ensure that his Annual Statements were submitted on time. If the accounting firm had the blank Annual Statement then he was not told, he said he has since engaged a new accounting firm to prepare his Annual Statements. There is undisputed evidence that the Leader did change his accountants. The letter by the Leader was received by the OC on 21 April, 2020.
    
36. The Leader told the Tribunal that he was later given a substituted copy of 2013/2014 Annual Statement by the OC, which he filled and submitted on 16 February, 2021. This Annual Statement is Exhibit “TTT”, there is OC stamp on the Annual Statement which indicates that the Annual Statement was received by the OC. The OC denied the claims by the Leader. However, Exhibit "TTT" bears an acknowledgement receipt by the OC. The receipt indicates that an Annual Statement for 2013/2014 by the Leader was received by the OC at the Ground Floor, Petronim Haus on 16 February, 2021 at 10.02am. The receipt was signed by Nigel Hulambia, an accountant and witnessed by Numa Renagi. In a cover letter with the Ministry of Defence letterhead dated 9 February, 2021, the Leader told the OC that he was submitting a substituted 2013/2014 Annual Statement.
    
37. The Leader also told the OC that in his earlier letter of 9 November, 2020 to the OC he indicated that he would submit the Annual Statement by 30 November, 2020, but due to political situation brought about by the Vote of No Confidence, he was not able to assist his accountants complete the Annual Statement and submit it by 30 November, 2020.
    
38. It is important to bear in mind that the OC told the Leader that he failed to submit his Annual Statement in a letter dated 6 April, 2020. Obviously, a much delayed reminder.
    
39. In the Statement of Reasons dated 11 November, 2020, the OC said for the purposes of s. 29(1) of the Constitution and ss. 17 (d) and 27 (1) of the Organic Law it was satisfied that there was a prima facie case that the Leader had been guilty of misconduct in Office regarding this allegation.
    
40. In our considered opinion, for a leader to be guilty of misconduct in Office, the Leader must have acted in breach of s.27 of the Constitution, which deals with the leaders’ duties and responsibilities of Office, even if allegations are made specifically under the provisions of the Organic Law. The reason being any allegation against a leader for misconduct in Office always relates to the honesty and integrity in the conduct of the leader and whether the leader's conduct breached s. 27 (1) of the Constitution. Section 27 reads:

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) 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.

41. In our opinion, s. 27 is an all-encompassing law that covers all forms of leadership breaches constituting misconduct in Office by leaders. The conduct of a leader must have an element of dishonesty and that the conduct is deliberate and intentional and or reckless for such conduct to be in breach of s. 27 (1) of the Constitution. See, In the Matter of Grand Chief Sir Michael Somare (supra) and Application Pursuant to s. 155 (4) by John Mua Nilkare (1997) SC536; [1998] PNGLR 472. In the latter case, the Supreme Court in reflecting on s. 27 said:

"Much of what has been expressed by the CPC in the report is reflected in s 27 of the Constitution. S 27 is concerned with responsibilities and conduct of leaders. Subsec (1) deals with the "duty to conduct himself in such a way, both in his public or official life and his private life". This relates to (1) conduct generally and (2) in his association with other persons. The nature of conduct which may result in misconduct are itemised s 27 (1) (a) — (d). This conduct include behaviour on the part of the leader where there may be a conflict of interest or where the leader's position may be compromised (s 27 (1) (a)).

The other three types of conduct (s 27 (1) (b) to (d)) are expressed in very wide and general terms. It is incapable of precise definition. In fact any kind of definition is likely to fall short of what this provision was intended to cover. These provisions cast a very wide net to catch all kinds of conduct by leaders. One thing is clear, it is the public perception of the leader which is the dominant theme. Sec 27 (2) speaks about "doubt in the public mind". When a leader demeans his office or his integrity is called into question this will diminish the respect for and confidence of government.

What then are proper standards of conduct? I have no doubt that laws of this country in themselves set a standard of conduct. Where a leader breaches or ignores any law of Papua New Guinea, he is likely to breach s 27 (1) (b) to (d) of the Constitution. If a leader is convicted of an offence in relation to his office or position or in relation to the performance of his functions s 27 (5) specifically lists this as misconduct in office.

...The Preamble refers to the noble traditions of our ancestors and the Christian principles. Such principles include decency, honesty, integrity, transparency, accountability and the like. These principles will be taken into account in determining whether the conduct of leaders amount to misconduct in office under s 27 of the Constitution". (Our underlining).

42. Thus, it is an established principle of law that allegations of misconduct in Office relate to the leadership duties and responsibilities of a leader as stipulated under s, 27 of the Constitution. In discharging those responsibilities, the leader must conduct himself responsibly with integrity. If the leader’s conduct is irresponsible and dishonest then such conduct will call the integrity of the leader into question. This will form the basis for the leader’s suspension from Office if he is referred to the Public Prosecutor by the OC, the effect of which is that the leader is suspended from performing any leadership duties and responsibilities. Then eventual dismissal from Office if found guilty by a leadership tribunal for misconduct in Office. The latter is reflected in the penalty regime stipulated under s. 31 of the Constitution which provides that a leader, if dismissed from Office is barred from occupying any leadership position, including an elective Office if the leader had been a Member of Parliament for 3 years after the date of his dismissal.

43. In James Eki Mopio, the Supreme Court said s. 27 of the Constitution enforces the Leadership Code. The Supreme Court said:

“Section 27 of Pt. V of the Organic Law on the Duties and Responsibilities of Leadership provides for enforcement in cases of misconduct in office by those subject to the Leadership Code. Section 27 is a grant of power to the Public Prosecutor or the Ombudsman Commission to refer a matter of misconduct in office to the appropriate tribunal”.

44. In Re: Kedea Uru (supra) the tribunal held that the leader who received certain benefits in an honest but mistaken belief that he was entitled to the benefits could not be in breach of by s. 27 because there was no element of dishonesty in the conduct of the leader in receiving the benefits. The leader was found not guilty of misconduct in Office. Section 27 (1) therefore lays down the tests to be met for a leader to be guilty of misconduct in Office.

45. A reckless breach of the Leadership Code would arise where a leader after realizing the breach had failed to correct or rectify the breach and continued committing the breach. There must be clear and strong evidence of such breach for the leader to be found guilty of misconduct in Office. In this case the Leader told the OC in his response letter that he did not realize that Annual Statement for 2013/2014 “was missing or had not been submitted”. He said the OC did not alert him that he had not submitted the Annual Statement. The Leader's response letter reads:

“I was surprised that the 2013/2014 Annual Statement was missing. Only upon receiving your letter of 6^th April, 2020 “Subject- Notice of Right to be Heard” I became aware of that situation.

The Ombudsman Commission did write to me seeking clarifications for deposits into my account for the said periods (sic.) but they did not specifically advise me that the 2013/2014 Annual Statement was outstanding”.

46. It is plain to us from this part of Leader's response letter that the Leader had honestly but mistakenly believed that his Annual Statement for 2013/2014 was submitted to the OC. One must remember that the OC told the Leader about six years after the period within which the Leader was required to submit the Annual Statement that he had failed to submit the Annual Statement. Given the Leader's reasons for not submitting the Annual Statement, we are not satisfied that the Leader deliberately refused or failed to submit the 2013/2014 Annual Statement nor was he reckless in his conduct. In our view the OC is not free from blame because it had the duty to inform the Leader promptly after the period within which the Annual Statement was supposed to have been submitted had expired that he had not submitted the Annual Statement. The OC waited for six years before telling the Leader in early April, 2020 that he failed to submit the Annual Statement. We find that in the circumstances, the Leader was not given a fair hearing by the OC before finding him guilty of misconduct in Office. We are of the opinion that the OC breached the principles of natural justice. We find the Leader did not act in breach of s. 27 (1) of the Constitution.

47. The tribunal in, In the Matter of Grand Chief Sir Michael Somare (supra) in stressing the right of a leader to be heard said:

"A leader against whom allegations are made must be fully and fairly informed of the acts or omission complained, afforded natural justice in a robust and transparent manner and provided with the fullest opportunity to challenge or to respond to the allegations".

48. The tribunal made these observations regarding the right of a leader to be heard by the OC.

49. It would be against the interest of justice for the Tribunal to make an adverse finding against the Leader for not submitting the Annual Statement for 2013/2014. For the reasons given, we are of the opinion that the OC must bear some blame for the alleged failure by the Leader to submit the Annual Statement. Thus, it would also be unfair for us to make any adverse findings against the Leader. We accept the Leader’s evidence that he was allowed by the OC to submit a substituted copy of the 2013/2014 Annual Statement late, which is Exhibit ‘TTT’. See, SRC No. 2 of 1982; Re Kunangel (supra).

50. We find that the Leader has given reasonable explanations for any delay on his part in submitting the 2013/2014 Annual Statement after receiving the OC's letter of 6 April, 2020.

51. There is one other matter we must address in deciding whether the Leader was given a fair hearing by the OC. The matter relates to the application by the Leader to the OC on 28 February, 2013, to be allowed to continue operating his businesses. The application was approved by the OC in a letter dated 14 June, 2016 to the Leader. Such delayed response begs the question whether the allegations relating to the Leader’s business activities between 28 February, 2013 and 14 June 2016 have been made in good faith and whether the allegations are fair. Further- still whether the allegations should have been made at all.

52. We relevantly note that most of the allegations occurred between 2007 and 2016. For example, allegation 14 relates to claims that between 20 July 2007 and 25 February, 2016 the Leader failed to comply with the requirements of s. 21 of the Business Group Incorporation Act, Chapter No. 144. This period includes the period in which the Leader was not subject to the Leadership Code. That immediately begs the propriety of the allegation. In any event, such length of delay in referring the matter to the Public Prosecutor in our opinion seriously prejudices the Leader and puts the Leader in very difficult position to answer the allegations against him properly and fully. Over such long period of delay, evidence could have been lost, witnesses not being able to recall events or dying and so on. In such situations the leader would be denied a fair hearing.

53. The evidence relied upon by the Referrer in our opinion had been severely dented by the long delay and the credibility of the evidence had greatly diminished. This is another reason we are not satisfied that the Leader failed to submit 2013/2014 Annual Statement.

54. We consider it appropriate to make some general observations and elaborate on the right of a Leader to be heard fully and properly by the OC on allegations of misconduct in Office. The duty on the OC to give fair and proper hearing to a leader is rooted in audi alteram partem rule. This rule requires a public body such as the OC to act fairly in its decision-making process. The rule embodies the principles of natural justice, a common law principle which is part of our underlying law which is enforced by the Constitution under s. 59. The OC as a public body is mandated by the Constitution under s. 59 to observe principles of natural justice in its investigation of leaders for alleged breaches of the Leadership Code. Having regard to these principles, we find that apart from the long delays in referring the matter to the Public Prosecutor, the Leader was not given the opportunity to be heard, thus was denied a proper and fair hearing.

55. Whilst we fully appreciate that OC has to deal with many cases, we consider that where the OC is not satisfied with written explanations by leaders regarding allegations made against them, it is incumbent on the OC to conduct personal interviews with those leaders. This will in our view give the leader full opportunity to be heard. In this case the Leader was invited to respond to the allegations which he did in writing. The written response by the Leader then became the basis for the OC to make a deliberate judgment under s. 17 (d) of the Organic Law that the Leader was guilty of misconduct in Office regarding the matters which the OC considered the Leader failed to answer in his written response.

56. The Chief Ombudsman told the Tribunal that under the express terms of s. 4 of the Organic Law, the OC has no discretion but to find the Leader guilty of misconduct in Office regarding matters put to the Leader in the OC’s “right to be heard” letter of 6 April, 2020 which the OC considered the Leader had failed to give satisfactory answers in his response letter of 13 May, 2020.

57. We are unable to agree with the OC that it has no discretion under s. 4 of the Organic Law. Given that it has power to make a prima facie finding of guilty against leaders which may result in the leader being suspended from Office and eventually dismissed from Office, if found guilty by a leadership tribunal, it is incumbent on the OC to give the leader full and fair hearing. In our opinion, personal interviews with leaders facing allegations of misconduct in Office in such situations is an integral part of the process of full and fair hearing by the OC. In our opinion, conducting personal interviews with a leader whose written responses to questions put to him by the OC are unclear or even insufficient is in harmony with OC's investigatory functions under s. 219 of the Constitution and s. 17 of the Organic Law and principles of natural justice under s. 59 of the Constitution. The OC is not an ordinary public body, it is a constitutional body, thus is mandated to comply strictly with the constitutional requirements.

58. The duty on the OC to give a full and fair hearing to a leader under investigation is commensurate to the position the leader holds. Because of the serious consequences that may follow viz; suspension from performing any leadership duties and responsibilities to dismissal from Office, the OC has the duty to be fair and thorough in its investigations and to exercise great caution in discharging its investigatory functions. In this case, the leader is a Member of Parliament duly elected to that public Office by the people he represents in the Telefomin Open electorate and pursuant to s. 50 of the Constitution, has the right to hold that Office.

59. Therefore, there must be proper and lawful basis for the Leader to be deprived of that right. Given the possible serious consequences of the Leader being dismissed from Office, greater degree of care and discernment was required of the OC in deciding whether to refer the matter to the Public Prosecutor for prosecution before a leadership tribunal. See, Special Reference by the Attorney General Pursuant to Constitution Section 19 (2016) SC1534. We find the OC failed to exercise such degree of care and discernment in this case.

60. The duty on the Public Prosecutor to be thorough and exercise care and discernment in deciding whether to refer a matter to an appropriate tribunal is more onerous. In making that decision, the Public Prosecutor must properly evaluate the OC's Statement of Reasons together with the supporting material. The Public Prosecutor must form an independent opinion of the matter so that if the Public Prosecutor comes to a different opinion from that of the OC, the Public Prosecutor must decline to prosecute the matter and immediately refer the matter back to the OC for possible prosecution by the OC.

61. The referral of the matter by the Public Prosecutor to an appropriate tribunal should be the last resort and should only be made in the clearest of cases and where the matter constitutes a clear breach of s. 27 of the Constitution. This requires exercise of due diligence, care and discernment because the Public Prosecutor's referral of the matter to an appropriate tribunal is the final process which determines the fate of the leader. See, Special Reference by the Attorney General Pursuant to Constitution Section 19 (supra).

62. Thus, it is important that the initial investigations of a leader by the OC for possible misconduct in Office be done with high degree of care and discernment. In this regard, we are of the opinion that it is part of the functions of the OC to assist and encourage such leaders to be good and responsible. See, Re Peter Ipatas [2006] N3078. Referral of a leader to the Public Prosecutor for possible prosecution before a leadership tribunal should be the last resort and only after all avenues to assist the leader to exonerate himself from possible misconduct in Office have been fully exhausted. This would require exercise of due diligence by the OC.

63. In this case, it appears that there was lack of due diligence both by the OC in referring the matter to the Public Prosecutor and by the Public Prosecutor in referring the matter to the Tribunal.

64. For the foregoing reasons, the Leader having pleaded guilty to allegation 1 and allegations 11, 12 and 13 having been struck out, we find the Leader guilty of allegation 1 but not guilty of allegations 2 to 10 and 14 to 22.

65. The Orders of the Tribunal are:

1. The Leader is guilty of allegation 1.
2. The Leader is not guilty of allegations 2 to 10 and 14 to 22.

Orders accordingly.

__________________________________________________________________
Public Prosecutor: Lawyers for the Ombudsman Commission (Referror)
Young & William Lawyers: Lawyers for the Leader