In re Nali (No 3) [2003] PGLawRp 19; [2003] PNGLR 116 (10 July 2003)

NATIONAL COURT OF JUSTICE

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

AND IN THE MATTER OF - THE TRIBUNAL APPOINTED UNDER SECTION 27 (7) (E) OF THE ORGANIC LAW ON THE DUTIES AND RESPONSIBILITIES OF LEADERSHIP;

AND IN THE MATTER OF - THE ALLEGATIONS OF MISCONDUCT IN OFFICE BY HON. MICHAEL NALI, MP, MEMBER FOR MENDI OPEN AND A MEMBER OF SOUTHERN HIGHLANDS PROVINCIAL ASSEMBLY.
(NO. 3) (2003) N2399

WAIGANI: GAVARA-NANU J (CHAIRMAN); MANUE F. (MEMBER), MONOULUK P. (MEMBER) SMS

20 June and 10 July 2003

CONSTITUTIONAL LAW – Breach of Leadership Code – Principles governing punishment.
WORDS AND PHRASES – Meaning of "Public Policy" – "Public good".

Facts

The Leadership Tribunal found hon. Michael Nali guilty of misconduct in office under s 5(1) of the Organic Law on the Duties and Responsibilities of Leadership. The Tribunal applying the guidelines set out in the Act for punishment,

Held

1. That the tribunal should consider the whole of the circumstances surrounding the misconduct of the Leader in office, in the light of public policy and public good, in order to determine the degree of culpability on his part.

2. The degree of culpability to warrant dismissal from office as is required by s.28 of the Constitution is one of "serious culpability".

3. In the circumstances of the case "there was no serious culpability or blameworthiness" on the part of the Leader in respect of the matters he was found guilty, nor did public policy or the public good justify a drastic punishment.

4. The Tribunal found the Leader guilty of misconduct in office on 3 of the 4 charges laid against him by the Public Prosecutor. The findings of guilt were on charges 1, 2 and 4. The decisions on charges 1 and 2 were unanimous, but on charge 4, the decision was by majority.

5. A fine on each of the charges he was found guilty was the appropriate penalty.

Papua New Guinea cases cited

Anderson Agiru [2002]PNGLR 567.
Gabriel Dusava (10th October, 1997, unreported).
In the matter of Gerard Sigulogo [1988-89] PNGLR 384.
Jim Kas v The Honourable Mr Justice Mark Sevua, Their Worships Mr Sition Passingan and Mr Mark Pupaka & Anor (24/10/00) N2010
Leo Morgan (28th April, 1978, unreported).
Mao Zeming (27th May,2003, unreported).
Melchior Pep (14th October, 1992,unreported).
Peter Peipul v Sheehan J, Mr Karopo and Mr Geita
(Constituting the Leadership Tribunal) [2002] PNGLR 596.
Timothy Bonga (30th April,1996, unreported).
The State v Morobet Awui Koma and Peter Kevin [1987] PNGLR 262.

Other cases cited

Egerton v Brownlow [1853] EngR 885; 10 ER 359.
Horwood v Millar's Timber & Trading Co. Ltd [1917] 1 KB 305.
Naylor, Benzon & Co. Ltd v Krainische Industrie Gesellschaft [1918] 1 KB 331.
Neville v Dominion of Canada News Co. Ltd [1915] 3 KB 556.
Wilson v Carnley [1908] UKLawRpKQB 13; [1908] 1 KB 729.

Counsel

C Sambua, for the Public Prosecutor.
G Sheppard, for the Leader.

10 July 2003

Gavara-nanu j; Manue F., Monouluk P. SMS: On 06 June, 2003, this Tribunal found Hon. Michael Nali guilty of misconduct in office on 3 of the 4 charges laid against him by the Public Prosecutor. The findings of guilt were on charges 1, 2 and 4. The decisions on charges 1 and 2 were unanimous, but on charge 4, the decision was by majority; charge 3 having been dismissed earlier when the Tribunal found that Hon. Michael Nali had no case to answer.

For the purposes of this judgment we reproduce charges 1, 2 and 4, hereunder: -

Allegation 1

That on 27 March, 1999, the Leader failed to carry out the obligations imposed by s 27 (1) of the Constitution;

By conducting himself in his public life and in his associations with other persons in such a way that he: -

(a) demeaned his offices as member of the Parliament for Mendi Open and member of the Southern Highlands Provincial Assembly; and

(b) allowed his official integrity and his personal integrity to be called into question; and

(c) endangered and diminished respect for and confidence in the integrity of government in Papua New Guinea;

And furthermore the Leader failed to carry out the obligations imposed by s 27 (2) of the Constitution:

By engaging in an activity that might be expected to give rise to doubt in the public mind as to whether he was carrying out the duty imposed by s 27 (1) of the Constitution;

In that he wilfully incited and led persons assembled at Mendi to act in so tumultuous a manner as to disturb the peace by being riotously assembled;

And furthermore by that conduct he contravened s 65 of the Criminal Code Act, thereby committing a criminal offence under that law punishable on conviction by imprisonment for a term not exceeding three years;

Thereby being guilty of misconduct in office under s 27 (5) (b) of the Constitution.

Allegation 2

That on 27 and 28 March, 1999, the Leader failed to carry out the obligations imposed by s 27 (1) of the Constitution;

By conducting himself in his public life and in his associations with other persons in such a way that he: -

(a) demeaned his offices as member of the Parliament for Mendi Open and Member of the Southern Highlands Provincial Assembly; and

(b) allowed his official integrity and his personal integrity to be called into question; and

(c) endangered and diminished respect for and confidence in the integrity of government in Papua New Guinea;

And furthermore, the Leader failed to carry out the obligations imposed by s 27 (2) of the Constitution;

By engaging in an activity that might be expected to give rise to doubt in the public mind as to whether he was carrying out the duty imposed by s 27 (1) of the Constitution;

In that he wilfully interrupted, obstructed and disturbed election proceedings for the Kagua-Erave Open Electorate and simultaneously, while in a public place, stripped off his outer clothing and continued to interrupt, obstruct and disturb the election proceedings while wearing only his underwear in a manner unbecoming of a national leader;

And furthermore by that conduct he contravened s 108 of the Criminal Code Act, thereby committing a criminal offence under that law punishable on conviction by imprisonment for a term not exceeding three years;

Thereby being guilty of misconduct in office under s 27 (5) (b) of the Constitution.

Allegation 4

That on 27 and 28 March, 1999, the Leader, except as specifically authorized by law, indirectly asked for, on behalf of his associate, a benefit by reason of his official position;

And furthermore, except in the course of and for the purpose of his official duties or his official position, used his official position for the benefit of another person;

In that on 27 March, 1999, he used his official position during election proceedings for the benefit of his associate, Mr Miru Luta, by leading a riot that had the effect of suspending the counting of ballot boxes;

And furthermore on 28 March, 1999, he used his official position during election proceedings for the benefit of his associate, Mr Miru Luta, by demanding that the Returning Officer not count three disputed ballot boxes that resulted in Mr Miru Luta being declared the successful candidate;

Thereby being guilty of misconduct in office under s 5 (1) of the Organic Law.

Counsel made submissions on penalty on 20 June, 2003, and the matter was adjourned to 3 July, 2003, for the Tribunal to deliver its decision on penalty, but due to time constraints, the Tribunal was not able to deliver its decision on that scheduled date. We now deliver that decision.

The relevant provision under the Organic Law on the Duties and Responsibilities of Leadership, (hereinafter refer to as 'the Organic Law') for the purposes of determining the penalty is s 27 (5), which 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.

The relevant provision under the Constitution is s 28 (1) (g) (ii) and (1A).
Section 28 (1) (g) (ii) is in these terms: -

28. – FURTHER PROVISIONS.

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

(g) shall establish independent tribunals that

(i)....

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

And Subsection (1A) is in these terms: -

(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.

Thus s27 (5) (a) of the Organic Law and s 28 (1) (g) (ii) of the Constitution provide that the leader who is found guilty of misconduct in office be dismissed from office or from his position; unless as provided under s28 (1A) of the Constitution, the tribunal finds that there is no serious culpability on the part of the leader, and public policy and the public good do not require dismissal. In which case, the tribunal may recommend an alternative penalty, viz. a penalty other than dismissal from office, see also s27 (5) (b) of the Organic Law.

The alternative penalties to dismissal from office, are provided under s 2 of the Leadership Code (Alternative Penalties Act) 1976. This section is headed Alternative Penalties, and provides: -

2. Alternative penalties:

The penalties that may be recommended and imposed under and for the purposes of Section 28(1A) of the Constitution and Section 27(5)(b) of the Organic Law are that the person found guilty of misconduct in office—

(a) be fined an amount fixed by the tribunal, not exceeding 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.

The section lists the alternative penalties in the order of their seriousness, thus the next most serious penalty below the maximum penalty of dismissal is a fine of an amount not exceeding K1,000.00 on each charge the leader is found guilty.

Submissions

(i) Submission by the prosecution.

The counsel for the Public Prosecutor submitted that there is serious culpability on the part of Hon. Michael Nali. Therefore, this Tribunal should recommend the maximum penalty of dismissal from office against him.

The prosecution relied on Jim Kas's case (27 September, 2000). In that case, the leader was found guilty of a single allegation of misconduct in office which arose from an incident at the Madang airport. He was the Governor of Madang at that time and he was very drunk and in company of some drunken policemen when he and those policemen attempted to board an aircraft which was preparing to take off, by ordering the policeman who was driving his car to drive onto the aerodrome. He also forced open the closed gate to Air Niugini cargo area when he tried to board the aircraft. And when he could not board the aircraft he became abusive to the Air Niugini staff.

The tribunal in that case found that there was serious culpability on the part of Jim Kas and recommended his dismissal from office. The tribunal held that Jim Kas breached the standard of conduct expected of him by the people of Papua New Guinea particularly, the people of Madang. The tribunal noted that the incident was in a public place and was witnessed by the public, which was played out in the media resulting in the public perception of the leader's conduct as a public disgrace.

The counsel for prosecution drew similarities between Jim Kas's case and this case and submitted that in this case, the conducts of Hon. Michael Nali were done in public places which were witnessed by the members of the public and which were widely reported in the media, and the public regarded his conducts as a public disgrace. It was submitted that like in Jim Kas's case, there were also threats to public safety in this case.

The other factors relied upon by the prosecution are that, there were interferences with the Constitutional functions of the Electoral Commission and the Returning Officer by Hon. Michael Nali. It was submitted that those interferences were severe and on-going which involved physical intimidation and abuse of election process. It was further submitted that Hon. Michael Nali's conducts were very serious because they breached the provisions of the Criminal Code Act. Thus, they amounted to serious breaches of s 27 (1) and (2) of the Constitution.

It was therefore submitted by the prosecution that the culpability of the leader in this case is much more serious than in Jim Kas's case. The prosecution submitted that this is clear when Hon. Michael Nali's conducts are viewed in their totality.

The prosecution also referred to a number of cases in which character references for the leaders who were found guilty of serious misconducts in office were produced before the respective tribunals to mitigate the leaders' penalties. Two of those cases are, Leo Morgan (28 April, 1978) and In the matter of Gerard Sigulogo, [1988-89] PNGLR 384. In Leo Morgan's case, he was described as a strong administrator in his character references and in Gerard Sigulogo's case, a church pastor who provided a character reference said the leader attended church services regularly and had a good standing in the church and served in the church's committee and was a good family man. In both cases, the leaders were dismissed from their respective offices despite the character references. The defence in this case has also produced a character reference on the leader.

The prosecution also referred to a number of other cases where the leaders, who were found guilty of misconducts in office had unblemished and outstanding pasts. For instance, the cases of Melchior Pep (14 October, 1992), Timothy Bonga (30 April, 1996), Gabriel Dusava (10 October, 1997), Anderson Agiru (18 January, 2002) and Mao Zeming (27 May, 2003). The respective leadership tribunals in those cases held that, although the respective leaders had such unblemished pasts, they were seriously culpable and recommended their dismissals. In this case, the defence has also produced evidence of the leader's qualifications and past good reputation.

As its last point, the prosecution referred to the recent Supreme Court decision in Peter Peipul's case (SCM 2 of 2002), which overturned the recommendation made by the leadership tribunal for his dismissal and imposed the alternative penalty of fines. The prosecution noted in argument that, that decision has to an extent softened and lessened the strict approach taken by the various tribunals in the cases cited above.

(ii) Submission by the defence.

The counsel for Hon. Michael Nali submitted that an alternative penalty of a fine on each of the charges he was found guilty should be recommended. That submission is of course on the assumption that this Tribunal does not find him seriously culpable and that public policy and public good do not require him to be dismissed from office.

The counsel for Hon. Michael Nali relied strongly on the Supreme Court decision in Peter Peipul's case. There, the leader was the Minister for Public Service and he pushed and recommended for his brother to be appointed a Commissioner of the Public Services Commission. The recommendation by the leader went through various agencies, including the Department of Personnel Management then eventually to the National Executive Council which deliberated on the matter and appointed his brother as a Commissioner of the Public Services Commission. The leader being a Minister in the Government was a member of the National Executive Council which appointed his brother.

When the Ombudsman Commission discovered his interest in the matter, he was eventually charged for misconduct in office. The tribunal which investigated the matter found him guilty and recommended the maximum penalty of dismissal from office. However on appeal, the Supreme Court held that because the leader did not act alone, as he had acted through the system, which included a submission made by the Department of Personnel Management to the National Executive Council, the leader was not the only one to be blamed, and therefore the tribunal had erred in recommending the maximum penalty. The appeal against his earlier penalty of dismissal was therefore upheld and fines in respect of each of the charges for which he was found guilty were imposed. Thus he was fined a total of K 5,000.00 for the five charges he was found guilty.

The counsel for Hon. Michael Nali argued that there are similarities between Peter Peipul's case and this case, thus the approach adopted by Supreme Court in Peter Peipul's case should be applied here and Hon. Michael Nali should not be recommended for dismissal from office but an alternative penalty should be recommended by this Tribunal.

Reasons for decision

The prosecution submitted that this Tribunal should consider the majority Supreme Court decision in Peter Peipul's case carefully. In particular, that of Amet CJ and Injia J which contain the relevant penalty regime. And because of the concerns expressed by Amet CJ as to the correctness of looking at the guilty findings on each charge separately. It was submitted by the prosecution that the safest and the proper approach for the Tribunal to adopt would be to: -

i. Consider the course of conducts by Hon. Michael Nali in the evening of 27th March, 1999, and the morning of 28th March, 1999, together, and

ii. Determine the degree of culpability on the part of Hon. Michael Nali on the matters he has been found guilty, and the requirements of public policy and public good as required under s 28 (1A) of the Constitution.

We accept this submission, in that we must consider the whole of the circumstances and determine as to whether there was serious culpability on the part of Hon. Michael Nali, and whether public policy and public good require his dismissal from office. For that, it is necessary that we recap the relevant facts.

Relevant facts

The relevant facts are that in the evening of 27 March, 1999, Hon. Michael Nali was seen leading a group of people to the gate of the perimeter fence of the Mendi Local Government Council Chamber. However, there was already a larger crowd which had assembled at the front gate of the fence, and around the perimeter fence. That crowd was already rowdy and Mr Luta was in that crowd.

Evidence show that Mr Luta and his supporters had already been demanding and threatening that counting be stopped and Mr Luta be declared the winner, before Hon. Michael Nali arrived at the gate. Sometime later, Mr Luta removed his outer clothings then later Hon. Michael Nali removed his. They both demanded to see the Returning Officer and the Provincial Police Commander who were inside the counting room. When they were eventually allowed to go to the counting room, they went in wearing only underpants.

When inside the counting room, Hon. Michael Nali told the Returning Officer that if the 3 disputed boxes were counted, democracy was finished. He also demanded that those 3 boxes be set aside for the Court of Disputed Returns to determine their validity later, and the Returning Officer should make the declaration. No threats were issued personally by Hon. Michael Nali either to the Returning Officer or to any other persons who were in the counting room. The evidence is that he behaved normally and he contributed to the crowd being contained, and his protests were described as peaceful. This evidence came from Sgt Nabote and Sgt Talimo. It was Mr Luta who threatened violence by saying that because he had incurred a lot of expenses in campaigning, there would be trouble if the 3 disputed boxes were counted. In that regard, Hon. Michael Nali's conducts cannot be equated with those in Jim Kas's case, which was relied upon by the prosecution. In the latter case, the leader was very drunk and disorderly and was abusive. He also walked onto the tarmac without being authorised to do so and when the aircraft was trying to take off. Those were very serious and they cannot be equated with Hon. Michael Nali's conducts, which the prosecution witnesses described as peaceful.

The suspension of counting by the Returning Officer that evening was the decision made by the Returning Office after he was advised by the Provincial Police Commander to suspend the counting because of the demands and threats made by Hon. Michael Nali, Mr Luta and Mr Luta's supporters. That advice was given after the Returning Officer had announced that he would count the 3 disputed boxes, following the demands made by Hon. Michael Nali that the 3 boxes be not counted.

On the following morning, on 28 March, 1999, Hon. Michael Nali, went with Mr Luta and Mr Tulapi and saw the Provincial Police Commander in his office and asked if the declaration would be made without further counting. The Provincial Police Commander told them that it was for the Returning Officer and the Electoral Commission to decide.

Sometime later, the Returning Officer went to see the Provincial Police Commander in his office to discuss the events of the previous evening and the counting of the 3 disputed boxes that morning. Hon. Michael Nali, Mr Luta and Mr Tulapi were still in the Provincial Police Commander's office when the Returning Officer arrived there. They then demanded the Returning Officer to declare the winner without further counting, but the Returning Officer told them that, it was not for them to tell him what to do and he told them to leave the office. The Returning Officer then contacted the Electoral Commission headquarters in Port Moresby by phone from the Provincial Police Commander's office and spoke to the Deputy Electoral Commissioner and advised him of the events of the previous evening and that morning. The Deputy Electoral Commissioner then advised the Returning Officer to put the 3 disputed boxes aside and declare the winner. Following that direction, the Returning Officer declared Mr Luta, who was leading the count, the winner of the Kagua-Erave open electorate by-election, without the 3 disputed boxes being counted.

Requirements under s 28 (1A) of the Constitution.

Was there serious culpability on the part of Hon. Michael Nali for the matters he has been found guilty and do public policy and public good require his dismissal from office?

There is no question that Hon. Michael Nali was culpable, but such culpability must be serious, if he is to be dismissed from office as required by s 28 (1A) of the Constitution.

In deciding this question, it is necessary to appreciate what is meant by the words 'serious culpability'. It is thus helpful to refer to a couple of case authorities on this point. The leadership tribunal in the case of John Nilkare (2 July, 1996) described 'serious culpability' in this way:

"It involves serious blame, an act involving wrongful intention or negligence, and act deserving censure".

And in the case of The State v Morobet Awui Koma and Peter Kevin [1987] PNGLR 262, Wilson J. at p. 263, said:

"The essential starting point in determining punishment is to fix the culpability or the blameworthiness of the prisoner". (our underlining).

In The State v Morobet Awui Koma and Peter Kevin (supra), his Honour was deciding the issue of culpability for the two accused who had pleaded guilty to the crime in which they acted as watchmen for the main perpetrator of the crime.

These cases in our view refer to the degree of culpability or the blameworthiness of the offender. It is thus convenient as we respectfully adopt these principles that for the question we have posed, we must determine the degree of blameworthiness on the part of Hon. Michael Nali for the matters he has been found guilty. In that regard, we remind ourselves that he is a leader of high standing as being a member representing Mendi Open electorate in the National Parliament and as a member of the Southern Highlands Provincial Assembly. He therefore carries heavy responsibilities as imposed upon him by s 27 of the Constitution.

We have observed in our judgment that the responsibilities and the standards of conduct imposed on the leaders by the Constitution are high and as such the leaders must conduct themselves with dignity and integrity. In that regard we held that Hon. Michael Nali's conducts lacked dignity and integrity, which are virtues expected of the leaders by the people of Papua New Guinea, more particularly, the people of Mendi open electorate.

We have found that he interfered with the Constitutional functions of the Electoral Commission and the Returning Officer which would constitute serious breaches of s 27 (5) of the Constitution, thus would ordinarily amount to serious culpability or blameworthiness on his part. And indeed the matters for which he has been found guilty are by no means trivial. They are serious matters.

We have also found that his dressing in underpants only when he went into the counting room in the evening of 27 March, 1999, to see the Returning Officer and the Provincial Police Commander was unbecoming of a leader.

It must however be noted that the manner of his dressing was only pleaded as an aggravating feature for allegation or charge 2, which was laid against him for interrupting, obstructing and disturbing the election proceedings pursuant to s 108 of the Criminal Code Act. We have said in our judgement that his dressing in underpants was part of his protests to stop the counting.

But, as we noted earlier, the conducts of Hon. Michael Nali must be viewed in the light and context of the overall circumstances of the case. In other words, his conducts cannot be viewed in isolation from other relevant circumstances. So, as to the events of the evening of 27 March, 1999, there were clearly other factors besides Hon. Michael Nali's demands and protests which contributed to the counting being suspended. That is clear from the relevant facts we outlined earlier. For instance, the demands by Mr Luta's supporters to stop the counting and threats issued by them if counting continued with the 3 disputed boxes, Mr Luta was part of that crowd. Then Mr Luta's own demands and threats after he went into the counting room. Those were part of the circumstances, which contributed in the counting being suspended by the Returning Officer. They are in our view more grave and serious, which must lessen the culpability or the blameworthiness of Hon. Michael Nali.

We have found that Hon. Michael Nali was part of the unlawful assembly which disturbed the peace and interrupted the election proceedings, but his culpability or blameworthiness becomes less serious when viewed together with these other factors and circumstances.

Further more, as we have noted earlier, the suspension of counting in the evening of 27 March, 1999, was more as the result of the decision made by the Returning Officer following advise by the Provincial Police Commander. It also appears on evidence that the demands and protests by Hon. Michael Nali would have made no difference, had the Provincial Police Commander not advised the Returning Officer to suspend the counting. This is clear because the Returning Officer had already announced his decision to count the 3 disputed boxes, even after the demands and protests by Hon. Michael Nali and those by Mr Luta and his supporters.

As to Hon. Michael Nali's culpability in respect of the events of the morning of 28 March, 1999, again, he was together with Mr Luta and Mr Tulapi in the Provincial Police Commander's office, when they all demanded for the declaration to be made. And again their demands would have made no difference, because, according to the Returning Officer, he told them quite emphatically that, it was not for them to tell him what to do and told them to leave the Provincial Police Commander's office. And the decision by the Returning Officer to make the declaration later that morning was as the direct result of the direction given to him by the Deputy Electoral Commissioner to declare the result without further counting. For that reason, the 3 disputed boxes were put aside and Mr Luta was declared.

The other factor which forced the declaration that morning was the threats allegedly made at the Kagua government station of possible destruction of the government station. But, that is not a relevant consideration here because, charge 3, which was based on such allegation has been dismissed.

It is also noted that when the decision for the declaration was made, Hon. Michael Nali was not with the Returning Officer because he had already left the Provincial Commander's office with Mr Luta and Mr Tulapi. In other words, the Returning Officer's decision to make the declaration was made in the absence of Hon. Michael Nali. Thus, the decision was not made because of any continuing demands by Hon. Michael Nali, rather, it was, as we said, as the result of the direction given to him by the Deputy Electoral Commissioner. These factors must again greatly lessen Hon. Michael Nali's culpability. We also note that the situation that morning was not as tense and threatening as in the previous evening.

In those circumstances, we are of the firm view that Hon. Michael Nali should not be solely held responsible for an outcome which was largely as the result of the actions taken by other people.

In the result, we find that there was no serious culpability or blameworthiness on the part of Hon. Michael Nali in respect of the matters he has been found guilty.

We now turn to address the aspect of 'public policy' and 'public good' which are relevant considerations to the question we have posed.

As we discussed earlier, the main factor or reason for the suspension of counting in the evening of 27 March, 1999, was the decision by the Returning Officer to suspend counting upon advise given to him by the Provincial Police Commander.

And for the purposes of discussing the aspect of 'public policy' and 'public good', it is necessary and convenient that we consider what a 'public policy' is. The 'public good' aspect need no further detailed consideration in our view as it is self-explanatory by its terms. It is however difficult to define 'public policy' because it is a vague and broad concept, thus it is incapable of any precise definition; and Burrough J. reflected this difficulty in Richardson v Mellish, [1824] EngR 715; 130 ER 294 at p. 303, when his Honour described public policy in this way:

"public policy is a very unruly horse, and once you get astride it you never know where it will carry you".

And Parke B, in Egerton v Brownlow, [1853] EngR 885; 10 ER 359 at p. 408, described 'public policy' as:

"a vague and unsatisfactory term ... calculated to lead to uncertainty and error when applied to the decision of legal rights".

Thus 'public policy' is a variable thing, which can and does change and is so manifested in different circumstances, for instance, accepted and applicable legal norms and principles and ideas or polices of governments, customs and usages of communities and so forth. Such circumstances and factors formulate and broadly define and determine what a 'public policy' is or may be.

We cite a number of cases which illustrate this broad concept or principle of 'public policy'. In Wilson v Carnley [1908] UKLawRpKQB 13; [1908] 1 KB 729, the Court of Appeal held that a promise of marriage by a man who to the knowledge of the promisee was at the time of making the promise married was void as being against public policy. The prohibition of such agreement was based upon "elementary considerations of morality".

In the Canadian case of Neville v Dominion of Canada News Co. Ltd [1915] 3 KB 556, a contract under which a newspaper proprietor had promised not to publish any comment on the plaintiff's land developments was held to be unenforceable, because the ordinary business of a newspaper was to comment upon fraudulent schemes, and that for a newspaper to contract to limit its right of comment was "a stipulation which was contrary to public policy".

In Horwood v Millar's Timber & Trading Co. Ltd [1917] 1 KB, 305, an employee of the respondent company had assigned his whole income to the respondent moneylender, and further bound himself not to leave his job, move from his house or enter into other debts without the consent of the respondent moneylender. When the appellant tried to enforce the assignment, the Court of Appeal held the contract void as against public policy. The case arose out of a mortgage type arrangement where the employee borrowed money from the respondent moneylender company. In refusing to enforce the agreement as being against public policy, Lord Cozens – Hardy MR at pp. 310,311and 312 said:

"It is argued that no question of public policy arises in this case, and that if there is consideration for the deed the Court will not measure the consideration and the question of public policy has no application. That is a proposition which in this Court, in Saxelby's case ([1916] 1 A.C. 688), I endeavoured to refute. The view taken in the House of Lords concurred in that. Now what does that mean? It means that considerations of public policy must be had regard to, and that it is no answer to say that an adult man, as to whom undue pressure is not shown to have been exercised, ought to be allowed to enter into any contract he thinks fit affecting his own liberty of action. I think that is not the law ...... No one has a right so to deal with a man's liberty of action as well as his property, and the law says it is contrary to public policy.

Now what is the deed with which we have to deal? It is in some respects the most extraordinary deed it has even been my fate to read. It is made between a clerk in the city of London and a money-lender-not so described, but he is, as we have been told, a registered money-lender.

Now can it be doubted that, that is a deed which is contrary to public policy? Is it open for a man in consideration of a sum of cash to bind himself not to leave the house where he is, not to sell any of his furniture and effects in the house or in any future house he may move into, which furniture is not the subject of any charge in favour of the mortgagee; is it open to him to say "Whatever property I may have I will not give any kind of security upon it for any sum of money or for any debt which legally or morally I may desire to pay"? Such a covenant would prevent the man from employing a doctor or a surgeon in the case of illness in his family, and would prevent him from raising money for the maintenance of his wife and children, or for the education of the latter. I think this is a deed which the law must recognize as bad on grounds of public policy of the most well-established kind...I have no hesitation in saying that in my view this is a deed which is contrary to public policy".

Perhaps a more finite description of what a 'public policy' is, was given by McCardie J. in Naylor, Benzon & Co. Ltd v Krainische Industrie Gesellschaft [1918] 1 KB 331 at p. 342, where his Honour said:

"The phrase "public policy" appears to mean the ideas which for the time being prevail in a community as to the conditions necessary to ensure its welfare; so that anything is treated as against public policy if it is generally regarded as injurious to the public interest .... It is well settled that a contract is not enforceable if its enforcement would be opposed to public policy ...... Public policy is not, however, fixed and stable. From generation to generation ideas change as to what is necessary or injurious, so that "public policy" is a variable thing. It must fluctuate with the circumstances of the time."

From the utterance of this principle or proposition by McCardie J. in Naylor, Benzon & co. Ltd v Krainsche Industrie Gesellschaft [supra], it can be said, that public policy exists and evolves for the public good and public welfare. Be it a government policy or an accepted custom or a usage of a community or an accepted legal norm or principle, so that if breached, it becomes injurious to the public interest and good.

We have considered it necessary to discuss and expound on what 'public policy' and 'public good' are because of the observations we will now make in respect of the conducts of Hon. Michael Nali as against the conducts of the police and the Electoral Commission.

We said that the police and the Electoral Commission were two other main players whose actions had a greater impact on the outcome of the events of the evening of 27 March, 1999, and morning of 28 March, 1999.

There is evidence that the Mendi Police Station Commander was overseeing the police operations in the evening of 27 March, 1999, and the police were on patrol, so some measures were taken to provide security but they were obviously inadequate to meet the security requirements. The Provincial Police Commander was also inside the counting room, sitting next to the Returning Officer when he should have been supervising the police operations.

Therefore, there can be no doubt in our minds that, the Provincial Police Commander's advise to the Returning Officer to suspend counting that evening was prompted by the inability of the police to contain the rowdy and angry crowd that was threatening violence. That was a clear reflection of the lack of preparations by the police to provide adequate security for the election proceedings that evening.

The Returning Officer on the other hand showed exceptional courage in the face of the threats which were being issued by Mr Luta and his supporters, because in spite of those threats he announced to them that he was going to count the 3 disputed boxes. If a single electoral official could have the courage to stand up to such threats, we see no reason why the police who should have had the numbers and the means could not control the crowd and provide security for the counting of votes in the 3 disputed boxes.

As to the events of 28 March, 1999, it is again clear that the direction given to the Returning Officer by the Deputy Electoral Commissioner to make the declaration was because of the events of the previous evening and the threats which were allegedly made at the Kagua Government station that morning.

That to our minds was an absolute compromise by the Electoral Commission of its Constitutional duties to conduct a free and fair election. There, the Electoral Commission effectively allowed and sanctioned the illegal declaration to be made by omitting the 3 valid ballot boxes from being counted, and in so doing, not only did it deny the people of Kagua-Erave open electorate a fair and free election, but it also denied the right candidate from being declared. In that regard, the Electoral Commission acted contrary to public policy and to its Constitutional duties. It was an act in breach of s 15 of the Organic Law on National and Local Level Government Elections, thrust of which is for the Electoral Commission to conduct free, fair and open elections, and s 126 of the Constitution which inter alia, provides for the independence of the Electoral Commission.

There were no physical threats made by anyone on the morning of 28th March, 1999, but even if there were any, again we see no reason why the police could not deal with such threats, and if they lacked the numbers, they could have made appropriate arrangements to bring in extra police units to assist them. It was the responsibility of the police as it was for the Electoral Commission to ensure that security was adequate for the election proceedings.

In the circumstances, the actions of the police and the Electoral Commission were clearly against public policy and public good. One had the duty to enforce the law and protect lives and properties while the other had the duty to ensure that there was free and fair election. They failed in those duties. Their actions were therefore injurious to the interest and the good of the people of Papua New Guinea, particularly, the people of Kagua-Erave open electorate. Such actions are bad because they can become entrenched and provide precedents for future elections. Thus in that regard, such actions by the police and the Electoral Commission must seriously outweigh and lessen the culpability of the leader in this case.

In our view, it would be unfair and unjust for the Tribunal to recommend dismissal against Hon. Michael Nali, when culpability or blameworthiness on his part for the matters he has been found guilty are greatly outweighed and lessened by the actions of the police and the electoral Commission. Also if we were to recommend dismissal against Hon. Michael Nali, we would effectively be disregarding the serious fundamental breaches by the police and the Electoral Commission of their respective Constitutional duties. It would also effectively amount to making Hon. Michael Nali the scape goat for an outcome which was largely the result of the actions taken by others. In this regard, we apply the ratio of the majority decision in Peter Peipul's case, particularly, the remarks made by Amet C.J at pages 28 and 29 of the judgement, and Injia J. at page 64 and 65, where his Honour said:

"Again the culpability in this situation is one of degree. When one looks at the total picture, the degree of culpability involved in the present appellant's case is a lot less than made out to be by the respondent".

To our minds, it is fair to say that Peter Peipul's case can be viewed as more serious than the instant case, because in that case, the leader manipulated and took advantage of the public service machinery over which he was the political head, in order to have his brother appointed as a Commissioner of the Public Services Commission. In this case, there was no such conduct by Hon. Michael Nali. This reinforces our view that the penalty we recommend in this case cannot be dismissal from office.

The penalty we recommend here must also reflect the disapproval by this Tribunal of the way the police and in particular the Electoral Commission compromised their Constitutional functions. The penalty must show that Hon. Michael Nali was not solely responsible for the outcome of the events of the evening of 27 March, 1999 and the morning of 28 March, 1999, and that greater part of the blame must lie on the police and the Electoral Commission.

For the same reason, it would in our view be against public policy and public good if the people of Mendi Open electorate were to go back to polls and elect a new leader at the expense of the public. Thus we are of the view that Hon. Michael Nali as the duly elected member for Mendi Open electorate should continue to hold office and represent his people in the National Parliament and the Southern Highlands Provincial Assembly.

It follows that the penalty we recommend cannot be dismissal from office. We consider that penalty of a fine on each of the three charges he has been found guilty as appropriate, as provided under s 2 of the Leadership Code (Alternative Penalties Act), 1976. Thus applying the totality principle as applied in Peter Peipul's case, we recommend that he be fined K1,000.00 on each of those three charges. For that we recommend that he be fined total amount of K 3,000.00.

Patrick Monouluk SM: I agree with the majority judgment on penalty and I have nothing to add. However having found Hon. Michael Nali guilty on only charges 1 and 2, I would recommend K 1,000.00 fine on each of those two charges. I therefore recommend that he pay total fine of K 2,000.00.

By majority decision, the Tribunal recommends that Hon. Michael Nali, member for Mendi Open electorate in the National Parliament and a member of the Southern Highlands Provincial Assembly be fined the total amount of K 3,000.00, being the aggregate amount of K1,000.00 fine on each of the 3 charges he had been found guilty.

A copy of this decision will be forwarded to the Speaker of the National Parliament to be presented to the National Parliament and to the National Executive Council.