Gore v Poole [2015] PGNC 261; N6128 (11 December 2015)

N6128

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 531 OF 2015

BETWEEN:

THE HONOURABLE DELILAH GORE MP, Member for Sohe, Minister for Religion Youth and Community Development
Plaintiff

AND:

THE HONOURABLE JUSTICE GOODWIN POOLE, MR MARK SELEFKARIU SPM & MR ERNEST WILMOT SPM as Chairman and Members of a Leadership Tribunal
Defendants

Waigani: Gavara-Nanu, J
2015: 9 November
2015: 11 December

JUDICIAL REVIEW – Application for judicial review – Decision of a Leadership Tribunal – Leader found guilty of misconduct in office – Requirements of s. 27 of the Constitution – Organic Law on Duties and Responsibilities of Leadership – Whether misconduct in office a form of corruption.

JUDICIAL REVIEW – Application for judicial review – Decision of a Leadership Tribunal - Penalty for a Leader found guilty of misconduct in office – Leader suspended from office without pay or any other entitlement of office for three months – Organic Law on Duties and Responsibilities of Leadership; s. 28 (2) – Whether period of suspension served before sentence can form part of the penalty.

Cases cited:

Application of John Mua Nilkare [1998] PNGLR 472
Peter Ipu Peipul v. Sheehan (2002) SC706
Re Public Prosecutor's Power to Request the Chief Justice to Appoint a Leadership Tribunal [2008] PGSC 48; SC1011
SCR No. 1of 1978. Re Leo Robert Morgan [1978] PNGLR 460

Other cases cited:

R.v Malesevic [1999] SASC 321 at [47]
Associated Picture Houses v. Wednesbury Corporation [1947] EWCA Civ 1; [1947] 2 All ER 680; [1948] 1 KB 233

Counsel:

I. Molloy with B. Bona, for the Plaintiff
W. Hagahuno, for the Defendants

11th December, 2015

1. GAVARA-NANU, J: This is an application by the plaintiff made pursuant to a notice of motion filed on 7 September, 2015, under Order 16 r 5 (1) of the National Court Rules. The applicant seeks orders in the nature of certiorari quashing the following two decisions of the defendants:

i. the decision made on 27 July, 2015, to find the plaintiff guilty of misconduct in office within the terms of s. 27 (5) (b) of the Constitution, in that she allowed her official and personal integrity to be called into question and thereby demeaned her office as Member of Parliament for Sohe Open and Member of the Oro Provincial Assembly.

ii. the decision in respect of the penalty imposed on the plaintiff on 10 August, 2015, recommending that the plaintiff be suspended without pay or any other entitlement of office for a period of three months from the date of commencement of suspension by the appropriate authority. (This is a further, or an alternative relief to the relief (i) above).

Undisputed facts

2. The plaintiff is the Member for Sohe Open in the Northern Province having been elected to the National Parliament in the 2012 general election. She is therefore subject to the Leadership Code and the Organic Law on the Duties and Responsibilities of Leadership ("OLDRL").

3. The defendants are members of a Leadership Tribunal appointed under s. 27 (2) and (7) (e) of the OLDRL, to enquire into the two allegations of misconduct made in terms of s. 27 (5) (b) of the Constitution against the plaintiff. The allegations were contained in a Reference dated 25 May, 2015, by the Public Prosecutor. Each of the allegations relate to an incident on 24 April, 2014, whilst the plaintiff was a passenger on board an Air Niugini flight, PX853 at Girua Airport, Popondetta, Northern Province, destined for Port Moresby.

4. The plaintiff was found not guilty of the first allegation but guilty of the second allegation, which is in these terms:

ALLEGATION TWO:

THAT on the 24th April 2015 the Leader failed to carry out the obligations imposed by Section 27 (1) of the Constitution by conducting herself in public life in such a way that she demeaned her office as Member of Parliament for Sohe Open and member of Oro Provincial Assembly; and allowed her official integrity and her personal integrity to be called into question; in that, as a passenger on flight PX853 at Girua Airport, Northern Province, she shouted at the cabin crew and uttered the words "take your seat, I will contact your boss and have you fired then you will lose your job. Do you know who I am?" or words to that effect, thereby being guilty of misconduct in Office under Section 27 (5)(b) of the Constitution.

5. In regard to the first decision of the defendants the plaintiff is seeking to review, which is to find the plaintiff guilty of the second allegation, Mr. Molloy, of counsel for the plaintiff submitted that the defendants erred in law in finding the plaintiff guilty because the second allegation does not have an element of corruption. Mr. Molloy relied on the Supreme Court decision in Re Public Prosecutor's Power to Request the Chief Justice to Appoint a Leadership Tribunal [2008] PGSC 48; SC1011, particularly paragraphs 58 to 64 and 67 to 71 of the decision.

6. Mr. Molloy has reproduced paragraph 70 to stress the point of his argument. Paragraph 70 reads:

"70. Given the broad meaning of the words misbehaviour, misconduct or misconduct in office and inability, it is inevitable that certain conduct may constitute multiple grounds of removal. The important distinction to bear in mind between misconduct in office on one hand and misbehaviour and inability on the other hand is that the acts constituting the former involve an element of corruption whereas the latter necessarily do not. In relation to the distinction between misconduct in office and breach of employment condition, it depends on the nature of the prescribed act. If the prescribed act involves an element of corruption, then such act may also constitute misconduct in office. For example a COH who actively engages in the management or control of a company or solicits and accepts a benefit in addition to his prescribed conditions of employment is guilty of breaching s 5 of OLTCEJ & s 15 of OLCCOH. Such conduct may also constitute misconduct in office under the Leadership Code. Another example is of a COH who is seen drinking in a public bar in a hotel, intoxicates himself and abuses hotel staff. Whilst such conduct may constitute misbehaviour, it may not necessarily constitute misconduct in office because the conduct does not involve an element of corruption."

7. It should be noted that the two examples given in this paragraph were omitted in Mr. Molloy's written submission. I have however considered them to be a vital part of the paragraph and have reproduced them, thus reproducing the paragraph in full. The two examples in my view give the paragraph its full meaning and context.

8. Mr. Molloy submitted that although the decision in Re Public Prosecutor's Power was related to the conduct and the grounds for removal from office of the Constitutional Office Holders ("COHs") the observations made by the Supreme Court in that case are relevant and applicable to all leaders who are subject to the Leadership Code. I do not think the defendants disagree with this proposition. It is in fact a common ground.

9. It is pertinent to also note that the Supreme Court's decision in Re Public Prosecutor's Power made distinction between 'misconduct in office' and 'misbehavior' by a leader. The Supreme Court said the former has an element of corruption, but not necessarily in the case of the latter. The Supreme Court did however say that the types of conduct of a leader which would have an element of corruption and which would constitute misconduct in office, are those in which the leader used his position for financial gain.

10. In regard to the second decision of the defendants which the plaintiff is seeking to review, viz; the penalty imposed on the plaintiff in which the defendants recommended that plaintiff be suspended without pay, or any other entitlement of office for a period of three months from the date of commencement of suspension by the appropriate authority, Mr. Molloy argued that the defendants erred in law in not considering and taking into account on sentence, the period of almost two months the plaintiff was on suspension before sentence. It should be noted that the penalty imposed on the plaintiff is one of the less serious penalties prescribed under s. 2 of the Leadership Code (Alternative Penalties) Act, (Chapter No.1A). Mr. Molloy relied on a suspension of a leader who is referred to an appropriate tribunal under s. 28 of the OLDRL for his argument. Section 28 is in these terms:

28. Suspension

(1) Where a matter has been referred to a tribunal under Section 27 the person alleged to have committed misconduct in office is suspended from duty.

(2) A suspension under Subsection (1) is on full pay.

11. Mr. Molloy submitted that the issue raised here is similar to a sentence imposed in a criminal case, where the trial judge has to take into account the period an accused spent in custody. He relied on R v. Malesevic [1999] SASC 321 at [47] for the proposition that it would constitute an error of law if a trial judge did not consider and take into account on sentence the time spent in custody by an accused. It was submitted that had the plaintiff's pre-sentence suspension period been considered and taken into account on sentence by the defendants, it could have possibly operated to reduce the period of suspension imposed on the plaintiff on sentence. It was also submitted that the omission by the defendants to consider the pre-sentence suspension is an error amounting to a failure by the defendants to exercise their discretion properly and judicially when deciding the penalty for the plaintiff. It was further submitted that this is a relevant consideration which this Court should have regard to because the aggregate period of suspension the plaintiff may serve viz; period of suspension before sentence and the three months suspension imposed on the plaintiff on sentence would exceed the maximum period of suspension prescribed under s. 2 of the Leadership Code (Alternative Penalties) Act, which is three months.

12. Mr. Molloy submitted that the omission by the defendants to consider the plaintiff's pre-sentence suspension also renders their decision on penalty unreasonable in the Wednesbury sense viz; the sense of unreasonableness stated in the often cited case of Associated Picture Houses Ltd v. Wednesbury Corporation [1947] EWCA Civ 1; [1947] 2 All ER 680; [1948] 1 KB 223. That is to say that the decision of the defendants is of a kind no reasonable tribunal could make because the penalty of three months has resulted, or may result in the plaintiff's electorate being deprived of the services of its Member for a period which is longer than the period contemplated by law. It was further submitted that the penalty can amount to double punishment, which the plaintiff claims is another reason why the decision of the defendants on penalty is unreasonable. The plaintiff consequently seeks an order quashing the decision of the defendants and remitting the matter back to the defendants to consider and to take into account the plaintiff's pre-sentence suspension; in the event that the plaintiff's application for the first relief fails.

13. Mr. Hagahuno of counsel for the defendants argued that the plaintiff's arguments are misconceived. He submitted that in regard to the first relief sought by the plaintiff, the plaintiff in relying on the passages in Re Public Prosecutor's Power has taken a very narrow and restrictive approach to the definition of 'misconduct in office' by a leader. He submitted that this approach is inconsistent with a very wide definition given to 'misconduct in office' by s. 27 of the Constitution, and that such an approach would defeat the whole purpose of s. 27. It was submitted that the matters alleged in the second allegation constitute misconduct in office by the plaintiff and fall within the wide definition of 'misconduct in office" given by s. 27 of the Constitution. It was argued that in that regard the decision in Re Public Prosecutor's Power, has been read out of its context by the plaintiff and arguments by the plaintiff should be rejected.

14. Mr. Hagahuno submitted that leaders, like the plaintiff, occupy high offices and there is a higher duty on them not to abuse those offices and to bring those high offices into disrepute. He submitted that in this case the plaintiff belittled a senior flight attendant of the leading airline in Papua New Guinea by shouting at her and talking down on her and telling her to sit down, while the flight attendant was carrying out her lawful duties, and calling the flight attendant "little girl". Mr. Hagahuno also submitted that the plaintiff did not just threaten to call the senior flight attendant's bosses to have her sacked, but she went on to call the Ministers responsible for Transport and Air Niugini on her mobile phone demanding that the flight attendant be sacked. Mr. Hagahuno submitted that if Mr. Molloy's submission was accepted by the Court, that would set a bad precedent and open the flood gate for leaders who abuse their offices, as in this case, to escape punishment. He submitted that the plaintiff's argument is contrary to law and public interest and is not in the interest of justice and should be rejected.

15. In regard to the second relief sought by the plaintiff, Mr. Hagahuno argued that the sentencing regime in criminal cases where a trial court considers and takes into account a period spent in custody by an accused while awaiting trial does not apply in leadership cases where suspension is imposed for a penalty under s. 2 of the Leadership Code (Alternative Penalties Act). This is because the two regimes of sentencing are governed by two different set of laws. One is governed by the Criminal Code and the other by the OLDRL and the Leadership Code. The types of offences are also different. One is a criminal offence, the other is an offence under the Leadership Code, and the proceedings in respect of the latter are administrative in nature.

16. I should at the outset state that in my reading of Re Public Prosecutor's Power, it essentially states that COHs are also subject to the Leadership Code but they may be removed from office on other grounds. The case does not in any way alter or change the law, the case in fact affirms that s.27 broadly defines 'misconduct in office'. It is also significant to note that in drawing distinction between 'misconduct in office' and 'misbehavior' when discussing other grounds on which a Constitutional Office Holder ("COH") may be removed, the Supreme Court said some conduct of leaders may not have an element of corruption, for example minor unethical behavior or misbehavior in a work place, insubordination and so on with which I respectfully agree. It is the correct statement of the law. But there are other forms of misbehavior by a leader, whether a COH or otherwise, which although not resulting in financial or material gain for the leader, may breach s. 27 of the Constitution and result in misconduct in office. For example, conduct of a leader giving rise to serious moral and ethical issues, such conduct would clearly demean the office of the leader and result in the perversion and impairment of the leader's integrity. This would clearly result in the leader's public or official integrity or his personal integrity being called into question. It is not necessary for me to go into a detailed discussion of the other grounds on which a COH may be removed from office; it suffices to cite what the Supreme Court said regarding this point at paragraphs 63, 66 and 67 of its decision:

"63. We accept Mr. Yalo's submission that the duties and obligations imposed on leaders in s. 27 of the Constitution and the OLDRL are couched in broad terms and cover a wide range of conduct of leaders in both their official and private life, which affects their leadership position. The ordinary English meaning of the word misconduct has the same meaning as misbehavior or unacceptable behavior: see definition of misconduct in Oxford Advanced Learner's Dictionary, Sixth Edition. Misconduct in office therefore would include such conduct or behavior of leaders whilst in office which conflicts with, compromises or prevents the proper performance of the leader's functions as a leader. Under this broad definition, misconduct in office may include misbehavior and even in some cases of inability". (my underlining).

"66. It is clear however from the scheme of removal provisions that Parliament's (sic.) intended that misconduct in office under the Leadership Code, general misbehavior and inability were treated as distinct grounds for removal of COH's. The removal of COH's for misconduct in office under the Leadership Code and OLDRL is one of several distinct grounds prescribed by the Constitution and OLGRICOH. In respect of grounds for removal of law officers, s 178 sets out three distinct grounds namely misconduct in office under the Leadership Code, inability and misbehavior. Likewise s 7 of OLGRICOH sets out the same three distinct grounds of removal which includes misconduct in office under the Leadership Code. The distinct nature of these grounds is evident from the conjunctive expression of these grounds by the use of the word "or". (my underlining).

"Misconduct in office distinguished from other grounds of removal of COH"

"67. The words misbehaviour and inability are not defined by a constitutional law. They must be given their ordinary meaning. The ordinary meaning of these two words is beyond doubt. In the context of leaders and COHs in particular, misbehaviour refers to conduct which may be regarded as wrong and unacceptable and offends against accepted standards of social, moral and ethical behaviour which may be established by practice or convention, or by a Code of Conduct. The word misconduct in ordinary language has the same meaning as misbehaviour. Examples of misbehaviour or misconduct include unacceptable conduct in the workplace or outside of the workplace which do not befit the office occupied by a COH and includes unethical behaviour amounting to breach of any Code of Conduct. Such conduct need not involve an element of corruption or breach of any law as in the case of misconduct in office. Acts of misbehaviour are many and varied and it is not practical to list them exhaustively. They would include abusive behaviour and acts of insubordination."

17. These passages clearly affirm that misconduct in office is given a very wide definition by s. 27 of the Constitution.

18. In this case, there is no dispute that the plaintiff is subject to the Leadership Code. For the purposes of this application, there are two issues arising before me. First issue is whether the second allegation has an element of corruption. In other words, did the plaintiff's conduct have an element of corruption? Second issue is whether the defendants erred in law in not considering and taking into account the plaintiff's pre-sentence period of suspension on sentence?

19. Turning to the first issue, it is appropriate to note that the defendants considered and addressed in detail the plaintiff's conduct regarding the words she spoke to the senior flight attendant, one Sheryl Marjen, some of which were cited in the second allegation. The start of the incident was marked by the plaintiff talking on her mobile phone in the aircraft as the aircraft was preparing to leave Girua Airport, Popondetta for Port Moresby, and the senior flight attendant telling the plaintiff to put her mobile phone off while carrying out the required safety procedures in preparation for the departure of the aircraft.

20. The evidence before the defendants established that the plaintiff in an "excited and angry" voice reacted to the senior flight attendant by saying to the flight attendant: "Shut up, do you know who I am? Take your seat, little girl." The flight attendant in a prepared hand written statement which was tendered in evidence before the defendants said: "She told me to shut my mouth little girl". Two witnesses who were passengers on the aircraft, namely Mr. Morley Mirou and Ms. Elizabeth Avaisa told the defendants that the plaintiff was "shouting and yelling" and told the senior flight attendant: "Shame on you, shame on you. I am going to call the Transport Minister and have you, the pilot and the cabin crew sacked for being rude." Mr. Mirou told the defendants that the plaintiff was- "shouting on top of her voice", so he intervened to try and calm the situation. While the aircraft was on the runway, Mr. Mirou heard the plaintiff talking to a Minister who then told the plaintiff to ring Ben Micah. The plaintiff then rang "Ben". Ms. Avaisa confirmed to the defendants that the plaintiff made the above statements to the senior flight attendant. She also heard the plaintiff speaking to "Ben" on her mobile phone. There is undisputed evidence that the senior flight attendant was reduced to tears because of the things the plaintiff said to her.

21. The plaintiff was not called to give evidence before the defendants but her affidavit was tendered in evidence. In the affidavit the plaintiff among others things, told the defendants that the senior flight attendant was abrupt, rude and disrespectful to her when telling her to put her mobile phone off.

22. The defendants made the following findings:

1. The Leader, for whatever reason, shouted loudly and for some time at and about the cabin attendant – Sheryl Marjen.

2. The Leader did threaten to ring the Transport Minister and have him contact Air Niugini CEO and have cabin attendant lose her job.

3. The Leader's comments were threatening to the cabin attendant and intended to subject her to humiliation.

4. The Leader used aggressive and loud and belittling terms and threatened the cabin attendant with loss of her job.

5. The Leader's outburst was in response to instruction to turn off her mobile phone.

6. Even accepting the Leader's version of events that the instruction was uncalled for (because she was turning off her mobile phone) and given in a manner which the Leader thought disrespectful and rude, her response was unreasonable and excessive.

23. At paragraphs 47 and 48 of their decision on verdict (p.155 of R/B), the defendants said:

"47. We note that it is the Leader's case that she was spoken to abruptly even rudely, and that this failed to show her the respect which she felt should be due to her as a Member of Parliament and Minister by the cabin crew of aircraft in which she was a passenger."

"48. "It is possible, in the light of the evidence of the passenger Morley Mirou, that the cabin attendant's request or direction to the Minister about her mobile telephone may have been more abrupt than usual and have sounded ill-mannered. But as we have said, if the Leader was doing no more then (sic.) turning off her telephone (as she claimed), it is reasonable to expect that normal person (even a normal Member of Parliament) would be expected to indicated (sic.) he or she was turning off her phone rather than apparently to lose self control and indulge in a bad-tempered outburst sufficient to reduce the cabin attendant to tears."

24. Before announcing the guilty verdict, the defendants at paragraphs 70, 74 and 75 of their decision (pp. 163 & 164 of R/B), said:

"70. The Leader's threat to have the flight attendant sacked – to lose her employment – was both unjustified and unjustifiable. It showed complete disregard for the proper limit of her duties and responsibilities. We find that was conduct which allowed her official integrity as a member (sic) of Parliament and as a Minister to be called into question and diminished respect for her as a Member of Parliament and as a Minister".

"74. A Member of Parliament occupies an exalted position in Society (sic.). To be elected shows that there are sufficient citizens in the electorate who put their trust in the person they vote for to honestly and diligently represent their electorate (and the nation) by promoting policy and supporting legislation for the objective good of society and the nation. A very high position of privilege".

"75. The higher the privilege given to a person, the heavier the responsibility resting on that person to fulfill the obligations of the privilege. And the greater the honour and power which comes with such a privilege, the greater the duty which goes with that power to exercise the power to the best of the ability of that person who has it fairly and honestly not corruptly or selfishly. To exercise powers of an office just for selfish motives or to show that the office holder is a "big man" or "big woman" who has power, is to fail in the duty of a leader. This is because the Leader must not use his or her position for personal gain. "Gain" means more than financial or material gain (for that is corruption) – gain can also mean promoting your own image to try to impress the world that you are better than everybody else not because of your personal work and qualities but because you occupy the position that you do. People who act that way confuse the importance of the office or position they hold with the value of the person who holds it". (my underlining).

25. Section 27 of the Constitution defines the offence of misconduct in office. It is therefore convenient to reproduce the section. The section is in these terms:

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 association with other person, as not –

(a) to place himself in a position in which he has or could have a conflict of interests or might be compromised when discharging his public or official duties; or

(b) to demean his office or position; or

(c) to allow his public or official integrity, or his personal integrity, to be called into question; or

(d) to endanger or diminish respect for and confidence in the integrity of government in Papua New Guinea.

(2) In particular, a person to whom this Division applies shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by Subsection (1).

(3) It is the further duty of a person to whom this Division applies –

(a) to ensure, as far as is within his lawful power, that his spouse and children and any other persons for whom he is responsible (whether morally, legally, or by usage), including nominees, trustees and agents, do not conduct themselves in a way that might be expected to give rise to doubt in the public mind as to his complying with his duties under his 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 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 purpose 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 an offence.

26. Section 27 of the Constitution also imposes duties and responsibilities for the leaders. Subsection (1) deals with the duty of a leader to conduct himself in such a way, both in his public life and private life and in his association with others so that such conduct do not breach Subsection (1) (a) to (d).

27. The terms of Subsection (1) (b) to (d) are couched in very wide and general terms and are incapable of precise definition. It is therefore impossible to specify the types of situations they may cover, and the terms of this Subsection cast a very wide net to cover all kinds of conduct by the leaders. Such conduct may include a leader's conduct in the management of an organization or a Department which may result in misconduct in office. In this regard, the leader's conduct may breach established management policies or guidelines. Such policies and guidelines may be contained in management manuals, policy guidelines or by-laws. In this type of situation the standard of conduct for the leader would be determined by those management manuals, policy guidelines or by-laws.

28. The responsibilities imposed on the leaders by s. 27 of the Constitution are onerous and delicate. Performing these responsibilities is like walking a delicate path and the leaders in their conduct are required by these responsibilities to tread the path very carefully both in their public or official and private lives. The framers of the Constitution saw it fit to spell out these responsibilities in clear and precise terms in Subsections (1) to (4) so that they can be easily understood and followed by the leaders. I feel compelled to restate them here with some elaboration. Under Subsection (1) a leader must not by his conduct place himself in a situation where he would be placed in a conflict of interest or where his position would be compromised in the discharge of his duties or where his office or position would be demeaned or where his public or official integrity or personal integrity would be called into question, or where his conduct would endanger or diminish respect for and confidence in the integrity of the government in Papua New Guinea. Under Subsection (2), a leader must not use his office or position for personal gain, or to engage in any enterprise or activity that might be expected to give rise to doubt in the public mind whether he is carrying out the duties or responsibilities imposed by Subsection (1). An example of a case anticipated by this Subsection would be where a leader engages in activities or dealings which may appear normal but if such dealings are motivated by the leader's personal interests or ambitions, then such dealings may raise doubt in the public mind whether the leader's conduct is consistent with the duties and responsibilities imposed by Subsection (1). Under Subsection (3) a leader has a duty to ensure that his spouse, children and any other person for whom he is responsible, including nominees, trustees and agents do not conduct themselves in a way that might give rise to doubt in the public mind whether the leader is complying with the duties and responsibilities imposed by s. 27. It is to be noted that under this Subsection, a leader may be guilty of misconduct in office, if the conduct of those he is responsible for, give rise to doubt in the public mind, although the conduct in question is not his. It is to be further noted that, if necessary, the leader is expected to publicly disassociate himself from such conduct. Under Subsection (4) a leader has a duty to take heed to any directions issued either by the Ombudsman Commission or other authority prescribed for the purpose under s. 28 of the Constitution either generally or in a particular case, to ensure that objects of s. 27 are attained.

29. A leader who ignores or breaches a law either deliberately or by inadvertence is also likely to breach s. 27 (1) to (d). An example of such a situation may arise where a Departmental Head, or a CEO, or a head or a boss of an organization or an institution, by-passed the financial delegates and the management and approved expenditure for his own benefit or for personal gain. This is a classic case where a leader used public funds for his material or personal gain. This would amount to misuse of public funds or money belonging to tax payers by the leader for his personal benefit. In such a case, the leader's conduct may be in breach of the Public Finances Management Act, 1995. This may result in misconduct in office: Application of John Mua Nilkare [1998] PNGLR 472. In that case, Kapi DCJ (as he then was) in stressing the point said:

"Where a leader breaches or ignores any law of Papua New Guinea, he is likely to breach s. 27 (1) to (d) of the Constitution".

30. I respectfully agree with the defendants that word 'gain' in the context of a leader can also mean a leader conducting himself in such ways to promote himself or his own interests. Such conduct may involve the leader engaging either directly or indirectly in activities or enterprises motivated by the leader's personal desire to promote his image, or status, or personal glory or fame. A leader might also do things in certain ways to promote and to achieve his personal ideas and ambitions. Such conduct by a leader would result in personal benefit or gain and may result in misconduct in office.

31. In this regard, it is worth noting what the Constitutional Planning Committee ("CPC") said in its Report regarding the leadership responsibilities stated in s. 27 of the Constitution. Chapter 31, page 1 of the Report, at paragraphs 5, 6, and 9 the CPC said:

"5. ...The higher the office held in the state (sic.), the more serious the office holder's responsibility. The greater the power, the greater the obligations of the person holding the powerful position. The power he holds is not meant to be for his own honour and fame; much less is it for his own material aggrandizement. The power he holds is for the betterment of the citizens of Papua New Guinea". (my underlining).

"6. If the leader were to use his power for purposes other than the betterment of the citizens, he would be abusing it, and he would thereby be demonstrating his unworthiness of his high office. In short, his high office and all that it legitimately brings with it is never meant for the office-holder's material enrichment; it is meant to be used in the service of the citizens of the state (sic.) and for their betterment. Apart from its citizens, the nation state (sic.) is nothing. The state (sic.) exists for them, and the leaders and the bearers of high office are meant to serve the citizens as a whole, who make the nation what it is and what it is destined to become". (my underlining).

"9. We must presume that people who have won or have been appointed to high office are where they are because of their talents, their energy and personal character. These same talents and personal characteristics that the leader possess are, as it were, instruments fitting him for his office. Those who have given the leader his high position can properly expect that these talents will be put to the best service for the people and their improvement, and will not be used to further the leader's own personal advantage".

32. Returning now to the question of whether the second allegation had an element of corruption, one has to look at the words the plaintiff uttered to the flight attendant, the circumstances in which those words were uttered, the reason and the purpose for uttering those words. The ultimate test to me in deciding whether the second allegation had an element of corruption is whether the plaintiff by the words she uttered to the flight attendant breached s. 27 of the Constitution. If she did then that conduct would amount to misconduct in office, and that should satisfy the test and prove that the second allegation had an element of corruption. What is of essence here is that the plaintiff had by her conduct breached s. 27. The words uttered by the plaintiff as cited in the second allegation are – "Take your seat I will contact your boss and have you fired and you will lose your job. Do you know who I am?" The other uncontested evidence from the flight attendant is that: "She told me to shut my mouth little girl". This is corroborated by Ms. Elizabeth Awaisa, who told the defendants that the plaintiff told the flight attendant to "shut up". This evidence is also not disputed. This witness told the defendants that the plaintiff as a Minister, was seen as a role model but her conduct endangered the lives of the passengers so she "questioned her status". She later emailed her work colleagues and told them about what happened in the aircraft.

33. Other uncontested evidence is that the plaintiff was shouting at the flight attendant. The flight attendant described the plaintiff's conduct as unruly and rowdy. It is clear that the plaintiff conducted herself in a manner that was unbecoming of a leader. As the defendants found in their decision, the plaintiff belittled the flight attendant and talked down on her by telling her to shut up or shut her mouth and telling her to sit down "little girl". I have no doubt that the plaintiff behaved in this manner because of her position and status as a Minister. Her behavior shows clearly that she considered herself highly than the flight attendant. This view is fortified by the plaintiff telling the flight attendant that she would ring the Minister for Transport to have her sacked from her job after asking the flight attendant –"Do you know who I am?" The plaintiff said these things to the flight attendant in front of the other passengers in the aircraft to show everyone that she was a "big woman" with power and authority who could demand the sacking of the flight attendant and the pilot from the Minister for Transport and the Minister for Public Enterprises & State Investments. This was a clear demonstration of a 'big woman' mentality by the plaintiff, as was also noted by the defendants in their judgment. The plaintiff's conduct clearly amounted to an abuse of her office. There is no doubt that her conduct had demeaned her office as a Minister and as a Member of Parliament. By her conduct she allowed her public or official integrity and personal integrity to be called into question. Ms. Elizabeth Awaisa told the defendants that the plaintiff was trusted as a leader and was supposed to be a role model but she breached the trust the people had in her. The conduct of the plaintiff was a clear breach of s. 27 (1) (a) to (d) of the Constitution.

34. Pursuant to Schedule 1.5 of the Constitution, s. 27 has to be given a fair and liberal meaning. In that regard s. 27 has to be read in the light of other relevant provisions of the Constitution. Thus, when s. 27 is read together with the Preamble of the Constitution, one would note that the Members of Parliament exercise the powers given to them by the people, including those who voted them into Parliament. The 'people' here include the ordinary Papua New Guineans, particularly those who the leaders come in contact with or have dealings with one way or another. As leaders they are required, under the Constitution, to respect the dignity of the people they deal with.

35. The Preamble of the Constitution states this among other things, very clearly in this way:

WE THE PEOPLE, do now establish this sovereign nation and declare ourselves, under the guiding hand of God, to be the Independent State of Papua New Guinea.

AND WE ASSERT, by virtue of that authority

. that all power belongs to the people – acting through their duly elected representatives.

. that respect for the dignity of the individual and community interdependence are basic principles of our society.

. that we guard with our lives our national identity, integrity and self respect.

. that we reject violence and seek consensus as a means of solving our common problems.

. that our national wealth, won by honest, hard work be equitably shared by all.

36. The word 'corruption' is not defined either in the Leadership Code or in any other constitutional law or the OLDRL for the purposes of 'misconduct in office' as defined in s. 27 of the Constitution. The word must therefore, be given its ordinary meaning: Re Public Prosecutor's Power to Request the Chief Justice to Appoint a Leadership Tribunal (supra). A leader who engages in dealings for financial gain gives a clear case of a corrupt conduct. This principle is stated among others things in Re Public Prosecutor's Power. But what about a conduct of a leader that is not for financial gain? I hold the view that a leader's conduct may be corrupt even if the conduct is not for financial gain or benefit. In this regard, I am referring to conduct that is more than insubordination or mere misbehavior at work, or unethical conduct or behavior. I find support on this view from the ordinary dictionary definition of the word corruption. The word may be defined in different ways but its meaning is very clear. This is shown clearly by the following dictionary definitions given to the word. The Oxford Dictionary of Law 7th Edition by Jonathan Law & Elizabeth A. Martin defines corruption among others things as: "loss of integrity". Investopedia defines corruption as: "dishonest behavior by those in positions of power, such as managers or government officials". Cambridge English Dictionary defines corruption as: "Illegal, bad, or dishonest behavior, especially by people in positions of power". Dictionary.com defines corruption as: "moral perversion or perversion of integrity". Merriam –Webster defines corruption as: "dishonest or illegal behavior especially by powerful people or impairment of integrity, virtue or moral principle, a departure from the original or from what is pure or correct".

37. Applying these definitions of the word 'corruption' to this case, I reiterate the view that the appropriate test to apply in determining whether the leader's conduct had an element of corruption and whether it amounted to misconduct in office, is to see whether the leader's conduct breached the terms s. 27 of the Constitution. In my view a conduct of a leader that is in breach of the terms of s. 27 would have an element of corruption, thus any charge or allegation of misconduct based on such conduct would have an element of corruption. Section 27 in my view sets an exclusive test for a corrupt conduct by a leader. This principle applies also to the responsibilities imposed on leaders by provisions of the OLDRL, such as the duty imposed by s. 4 for the leaders to give annual statements of income to the Ombudsman Commission and so on. Hence a failure by a leader to perform or comply with these duties and responsibilities may amount to breach of s. 27 and may result in misconduct in office. These are leadership offences which in my view would have an element of corruption.

38. Consequently, the conduct of the plaintiff on 24 April, 2014, on board Flight PX 853 at Girua Airport, Popondetta, although it was not for financial gain was corrupt, in that the manner in which she conducted herself both in her behavior infront of the passengers and the cabin crew and the words she uttered to the senior flight attendant were in clear breach of the responsibilities imposed by s. 27 (1) (b) to (d) of the Constitution. The plaintiff by her conduct abused the power given to her by the people, especially the people of Sohe Open who elected her to represent them in Parliament. Her conduct violated the spirit and the express dictates of the Constitution in the Preamble and s. 27 (1) (b) to (d), by being disrespectful to the dignity of the senior flight attendant whom she belittled infront of the other passengers by telling her to shut her mouth or shut up and calling her "little girl". The plaintiff was verbally abusive towards the flight attendant and showed no regard for the safety of the passengers on the aircraft. The plaintiff as one of only a few women Parliamentarians as a role model to the women of Papua New Guinean, especially the young women like the flight attendant, should have restrained and humbled herself, and accepted that the flight attendant was carrying out her lawful duties when she told her (plaintiff) to put her mobile phone off. The plaintiff had allowed her moral and leadership virtues to be eroded by her uncontrolled temper and emotional outburst which involved shouting and yelling and the use of abusive language to the flight attendant, who as a result was reduced to tears. The plaintiff's conduct as a State Minister diminished respect for and confidence in the integrity of the Government she serves.

39. It is important for one to remember that the flight attendant was not picking on the plaintiff when she told the plaintiff to put off her mobile phone. It was a part and partial of the flight attendant's legal obligation to tell all the passengers on the aircraft, she was in-charge of, to put off their portable electronic devices including mobile phones so that they did not interfere with the aircraft's electronic devices during flight. This is a mandatory requirement under Part 91.7 of the PNG Aviation Rules. It is a routine announcement flight attendants make before aircrafts depart for their ports of destination. The announcements are made for the sake of the safety of the passengers on board the flights. This is also a requirement under the Air Niugini Standard Operating Procedures Manual Clause 5.2 on - Mobile Phone Use, that All mobile phones shall be switched off prior to engines start. In that regard, the plaintiff not only acted in a very unreasonable manner as a leader, but her conduct was also illegal because it breached the laws relating to safety of the aircraft and the passengers.

40. The Supreme Court in discussing a leader's obligations under s. 27 in SCR No. 1 of 1978: Re Leo Robert Morgan [1978] PNGLR 460 at 464 relevantly said:

A leader has a duty not to place himself in a position in which he could have a conflict of interest or might be compromised when discharging his duties, not to demean his office or position, not to allow his public official (sic) or personal integrity to be called into question, not to endanger or diminish respect for and confidence in the integrity of government and not to use his office for personal gain. And in this connection we consider that the Constitution, in so far as it seeks to preserve the people of Papua New Guinea from misconduct by its leaders, should not be considered a "penal" statute. In requiring a higher standard of behavior from its leaders than from ordinary citizens, it should not be considered as "penalizing" or "punishing" a leader, but as ensuring in the interests of the safety of the people that only persons who are prepared to accept added restrictions on their personal behavior should become leaders. No citizen need become a "leader".

41. Having regard to these principles and others I alluded to earlier, in this case there is no doubt in my mind that the plaintiff said and did the things alleged in the second allegation to promote her own image and status. She said and did things to show that she was a 'big woman' with power and authority, which she knew she did not have, especially when she phoned the Minister for Transport and the Minister for Public Enterprises & State Investments and demanded the immediate sacking of the flight attendant and the pilot. The fact that other passengers had volunteered to give evidence for the flight attendant before the defendants is a clear indication that the plaintiff had lost respect and integrity these passengers had in her, as a leader. There was an element of corruption in the conduct of the plaintiff and I find no error in the defendants finding the plaintiff guilty of the second allegation.

42. It follows that the first relief sought by the plaintiff, that the defendants erred in law in finding her guilty of the second allegation, must fail.

43. As to the second relief sought by the plaintiff, claiming that the defendants erred in not considering and taking into account her pre-sentence period of suspension on sentence, I find this argument to be misconceived. As a general principle, every case will depend on its own merits and the penalties will also vary depending on the circumstances in which the matters alleged against the leader occurred. In this case, the defendants in their decision on sentence had regard to the relevant provisions of the Constitution and the OLDRL, particularly s. 28 (1) (g) and (1A) of the Constitution and s. 27 (5) of the OLDRL and having considered these provisions and the issue of the seriousness of the plaintiff's culpability in regard to the matters alleged in the second allegation and the requirements of public policy and public good, decided against imposing the maximum penalty of dismissal from office under s. 28 (1) (g) of the Constitution and s. 27 (5) (a) of the OLDRL and pursuant to s. 28 (1) (A) of the Constitution and s. 27 (5) (b) opted to impose an alternative penalty of three months suspension without pay and other entitlement of office under s. 2 (c) of the Leadership Code (Alternative Penalties) Act. It is to be noted that the penalty imposed on the plaintiff is much less serious than dismissal from office. In that sense the penalty imposed is in my view very lenient.

44. It should be noted that the pre-sentence suspension served by a leader under s. 28 of OLDRL is a mandatory requirement under s. 28 and is automatic. The suspension automatically takes effect by operation of law (s.28), upon a referral of a leader being made by the Public Prosecutor to an appropriate tribunal under s. 27 of the OLDRL. The purpose of the suspension under s. 28 is to protect the people of Papua New Guinea from a leader who had already been found to be prima facie guilty of misconduct in office by the Ombudsman Commission. It is also aimed at preventing the leader from performing duties and interfering with the investigations into his conduct by an appropriate tribunal. It is important to appreciate that this suspension is not a penalty imposed by a Leadership Tribunal. For this reason the pre-sentence period of suspension cannot be compared with the sentencing regime under the Criminal Code: Peter Ipu Peipul v. Sheehan (2002) SC706.

45. The suspension under s. 28 is with full pay and the suspension is only in respect of the leader performing his duties. The suspension does not affect his position as a leader. Whereas the suspension imposed under s. 2 of the Leadership Code (Alternative Penalties) Act, is a penalty or a punishment imposed on a leader after he is found guilty of misconduct in office. This suspension relates to pay or other entitlement of office for the duration of the suspension. So there are very significant differences between the two forms of suspensions having different purposes. They are governed and regulated by two different set of laws, one by the Criminal Code and the other by the Leadership Code and OLDRL. The proceedings are also different, one is criminal and the other is administrative inquiry in which technical rules of evidence do not apply. Thus, a Leadership Tribunal unlike the National Court is not a court of law, and it is not part of the National Judicial System as specified in s. 159 of the Constitution: Anderson Agiru v. The Electoral Commission (2002) SC687. The pre-sentence suspension in leadership cases therefore cannot be compared with a period spent in custody by an accused person in a criminal case which the Court has to consider and take into account. The accused in a criminal case is prior to sentence remanded in custody, and during that period he is not a free person. He is deprived of his liberty and in that sense, he is just like the prisoners serving terms of imprisonment. This is why in criminal cases the court is obliged to take the custody period into account on sentence. But even that is entirely up to the discretion of the court.

46. In leadership cases, a leader who is suspended from duty under s. 28 still enjoys his freedom and status as a leader. He still occupies his office or position and enjoys all the benefits of the office, including pay, except performing his leadership duties. It is therefore, a misconception for the plaintiff to regard the pre-sentence suspension in leadership cases, as penal in nature and argue that pre-sentence suspension should be considered and taken into account on sentence by a leadership tribunal.

47. Even if I am wrong in this view, which I do not think it is, the defendants had the discretion to exercise on sentence and given the seriousness and the gravity of the conduct of the plaintiff, I do not consider the penalty imposed on the plaintiff was wrong in law or unreasonable in the Wednesbury sense. It follows that the second relief sought by the plaintiff must also fail.

48. For the foregoing reasons, the application is dismissed with costs.

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Manase & Co. Lawyers: Lawyers for the Plaintiff
Williams Attorneys: Lawyers for the Defendants