Peipul v The Leadership Tribunal [2002] PGSC 1; SC706 (24 May 2002)

SC 706

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM 2 of 2002

Between:

PETER IPU PEIPUL
Appellant

And:

HON JUSTICE SHEEHAN, MR ORIM KARAPO & IOVAI GEITA
(CONSTITUTING THE LEADERSHIP TRIBUNAL)
First Respondent

And:

THE OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA
Second Respondent

And:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani : Amet CJ, Kapi DCJ, Los, Injia & Sawong JJ
2002 : 1 May & 24 May

A Jerewai, for Appellant/Applicant.
Dr J Nonggor & Cannings, for Respondent.

DECISION

24 May 2002

AMET CJ: This is an appeal against the decision of the National Court dismissing an application for judicial review of the decision of the Leadership Tribunal (the Tribunal).

The Tribunal, established under the Organic Law on Duties and Responsibilities of Leadership (the Organic Law), to investigate and determine five allegations of misconduct in office, against the Appellant, found him guilty on all five charges and recommended dismissal from office, in respect of each charge.

The five allegations were:

1: THAT in December 1998, the Leader conducted himself in his public life and in his associations with other persons in such a way that he:

(a) placed himself in a position in which he had conflict of interests; and

(b) demeaned his offices as the Minister for Public Service, member of Parliament for Imbonggu Open and member of Parliament for Imbonggu Open and member of the Southern Highlands Provincial Assembly; and

(c) allowed his official integrity and his person integrity to be called into question; and

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

AND FURTHERMORE engaged 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 Section 27(1) of the Constitution;

IN THAT he -

(i) instructed the Acting Secretary of the Department of Personnel Management to prepare a National Executive Council submission regarding the appointment of his brother, Moses Ipu Tawa, to the vacant office of the Public Services Commission, that instruction being improper in that:

• (A) it was not accompanied by a disclosure that the person whose appointment he was promoting was his brother; and
• (B) it was not accompanied by consideration of any short listing criteria, thus being arbitrary and unprofessional and failing to show due regard to the constitutional status of the office concerned; and
  

(ii) submitted a statutory business paper to the National Executive Council which recommended that Mr Tawa be appointed to the vacant office of member of member of the Public Services Commission, that submission being improper in that:

• (A) it was not accompanied by an disclosure that the person he was recommending for appointment was his brother; and
  
• (B) it contained no evidence of any consultation with the Permanent Parliamentary Committee on Appointments, that being an important constitutional requirement; and
  
• (C) it was not accompanied by consideration of any short listing criteria or any explanation or analysis of the merits of each candidate, thus being arbitrary and unprofessional and failing to show due regard to the constitutional status of the office concerned; and
  
• (D) it failed to reveal that his brother was in fact under-qualified for the office of member of the Public Services Commission, as his had held relatively junior positions in the National Public Service compared to the other persons (former Departmental Heads) who were at that time being considered for appointment to that office; and
  
• (E) it resulted in the National Executive Council giving false and misleading advice to the Governor-General, namely that there had been consultation with the Permanent Parliamentary committee on Appointments; and
  
• (F) it resulted in the Governor-General, Sir Silas Atopare, being place in a position where His Excellency executed an instrument of appointment that contained a false statement, namely that the advice of the National Executive Council had been given after "consultation with the Permanent Parliamentary Committee" thus diminishing the integrity of the office of Head of State; and
  

(iii) participated in the meeting of the National Executive Council on 16th December 1998 which resulted in a decision to advise the Governor-General to appoint his brother to the office of member of the Public Services Commission, that participating being improper in that he did not disclose to the meeting that the person he was recommending for appointment was his brother; and consequently

(iv) engaged in nepotism;

THEREBY contravening Sections 27(1)(a), 27(1)(a), 27(1)(b), 27(a)(c), 27(1)(d), 27(2) and 27(5)(b) of the Constitution.

2: THAT in December 1998, the Leadership failed to reveal to the Ombudsman Commission and the appropriate authorities the nature and extent of the interest of an associate in a matter with which he had to deal in his official capacity;

AND FURTHERMORE dealt in his official capacity with that matter without good faith and without compulsion of law or urgent necessity or authorisation by the appropriate authorities:

IN THAT he -

(i) failed to reveal to the Ombudsman Commission and the National Executive Council and the Parliament the nature and extent of an associate, namely his brother, Moses Ipu Tawa, in being appointed to the vacant office of member of the Public Services Commission; and in particular

(ii) failed to reveal that he proposed to recommend his brother for appointment to that office, that being a matter with which he had to deal in his official capacity as Minister for Public service; and

(iii) instructed the Acting Secretary of the Department of Personnel Management to prepare a National Executive Council submission regarding the appointment of his brother to the vacant office of member of the Public Services Commission; and

(iv) submitted a National Executive Council statutory business paper recommending his brother for appointment; and

(v) participated in the meeting of the National Executive Council that resulted in a decision to advise the Governor-General to appoint his brother to that office;

THEREBY contravening Sections 6(1) and 6(2) of the Organic Law on the Duties and Responsibilities of Leadership.

3. THAT in December 1998, the Leader, being a member of an executive body who proposed to speak and vote on a matter before that body in which he had an indirect beneficial interest, failed to make a disclosure of the nature of his interest;
   

IN THAT he -

(i) failed to disclose to the National Executive Council for the purposes of its meeting on 16 December 1998 that the person he was recommending to appointment as a member of the Public Services Commission, Mr Moses Ipu Tawa, was his brother; and

(ii) took part in the deliberations and decision of the National Executive Council regarding the appointment of his brother, without any disclosure being recorded in the minutes of proceedings and without the National Executive Council resolving to allow him to do so;

THEREBY contravening Section 15(5) of the Organic Law on the Duties and Responsibilities of Leadership.

4. THAT in January 1999, the Leader conducted himself in his public life and in his associations with other persons in such a way that he:
   
   • (a) placed himself in a position in which he had a conflict of interests: and
     
   • (b) demeaned his offices as Minister for Public Service, member of Parliament for Imbonggu Open and member of the Southern Highlands Provincial Assembly; and
     
   • (c) allowed his official integrity and his personal integrity to be called into question; and
     
   • (d) endangered and diminished respect for a confidence in the integrity of government in Papua New Guinea;
     

AND FURTHERMORE engaged 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 Section 27(1) of the Constitution.

IN THAT having written to the Ombudsman Commission on 29 December 1998 and disclosed the appointment of his brother, Mr Moses Ipu Tawa, as a member of the Public Services Commission and having received an immediate response that (a) drew his attention to various pertinent laws and (b) requested twelve items of information by close of business on 5 January 1999, he did, rather than comply with that request and await a full and considered response from the Ombudsman Commission, proceed improperly to arrange revocation of the appointment of his brother as a member of the Public Services Commission and the immediate reappointment of his brother;

THE PARTICULARS of the impropriety being that he -

(i) purported to request consultation with the Permanent Parliament Committee on Appointments regarding the appointment of Mr Tawa as a member of the Public Service Commission, by handing a letter to the Chairman of the Permanent Parliamentary Committee on Appointments, Mr Beven Tambi MP, that purported request being improper in that-

• (A) it misleading referred to Mr Tawa’s proposed appointment as a "proposal by Government" when in fact it was his own proposal; and
• (B) it was not accompanied by any disclosure that Mr Tawa was his brother; and
• (C) it did not mention the names of any other candidates for appointment; and
• (D) it did not allow for any meaningful consultation; and
  

(ii) requested Mr Tambi to sign a letter he had prepared for Mr Tambi’s signature dated 5 January 1999 stating "I confirm that the Permanent Parliamentary Committee on Appointment [sic] is hereby deemed to have been consulted", that request being improper in that:

• (A) the statement that Mr Tambi was being asked to make was false and misleading; and
  
• (B) the Leader knew that the statement that he was asking Mr Tambi to make was false; and
  
• (C) the Leader was therefore compromising Mr Tambi’s position as Chairman of the Permanent Parliamentary Committee on Appointments; and having had that request acceded to by Mr Tambi; and
  

(iii) submitted a statutory business paper to the National Executive Council which recommended the revocation of the appointment of Mr Tawa as a member of the Public Service Commission and the reappointment of Mr Tawa to that office, that submission being improper in that:

• (A) it falsely and misleadingly stated that the Leader had consulted the Permanent Parliamentary Committee on Appointments on three candidates, when in fact he had only met with the Chairman and given him a letter to sign and there had been no meeting of the Committee and he had only referred to Mr Tawa and not to any other candidate; and
  
• (B) it resulted in the National Executive Council giving false and misleading advice to the Governor-General, namely that there had been consultation with the Permanent Parliament Committee on Appointments: and
  
• (C) it resulted in the Acting Governor-General, Mr Simon Kaumi, being place in a position where he executed an instrument of appointment that contained a false statement, namely that the advice of the National Executive Council had been given after "consultation with the Permanent Parliamentary Committee" thus diminishing the integrity of the office of Head of State; and
  

(iv) participated in the meeting of the National Executive council which resulted in a decision to advise the Governor-General to revoke the appointment of Mr Tawa to the office of member of the Public Services Commission and to reappoint him to that office, that participation being improper in that his disclosure that Mr Tawa was his brother was not recorded in the minutes of proceedings of the National Executive Council and he took part in the deliberations and decision of the National Executive Council without that body resolving that he be permitted to do so, contrary to Section 15(3) of the Organic Law on the duties and Responsibilities of Leadership and consequently

(v) violated the requirements of the Constitution (in particular Sections 118(1), 190(2) and 255 regarding appointment procedures for the office of a constitutional office-holder; and consequently
(vi) engaged in nepotism;

THEREBY contravening Sections 27(1)(a), 27(1)(b), 27(1)(c), 27(1)(d), 27(2) and 27(5)(b) of the Constitution.

5. THAT in January 1999, the Leader failed to reveal to the Ombudsman Commission and an appropriate authority the nature and extent of the interest of an associate in a matter with which he had to deal in his official capacity.
   

AND FURTHERMORE dealt in his official capacity with that matter without good faith and without compulsion of law or urgent necessity or authorisation by the appropriate authorities;

IN THAT he

(i) failed to reveal to the Ombudsman Commission and the Parliament the nature and extent of the interest of an associate, namely his brother Moses Ipu Tawa, in being reappointed as a member of the Public Services Commission; and in particular;

(ii) failed to reveal that he proposed to recommend that Mr Tawa’s appointment be revoked and that Mr Tawa be reappointed to that office, that being a matter with which he had to deal in his official capacity as Minister for Public Service; and

(iii) submitted to a statutory business paper to the National Executive Council recommending the revocation of the appointment of Mr Tawa and the reappointment of Mr Tawa; and

(iv) Participated in the meeting of the National Executive council that resulted in a decision to advise the Governor-General to revoke the appointment of Mr Tawa and to reappoint Mr Tawa to that office;

THEREBY contravening Sections 6(1) and 6(2) of the Organic Law on the Duties and Responsibilities.

FACTS

The following relevant facts found by the Tribunal are not in dispute. On 3rd December, 1998 when the appellant first assumed office there existed a vacancy for a Commissioner on the Public Service Commission. That vacancy had arisen in March of 1998 on the expiry of the term of then Commissioner Mr Paul Lawton. He was to continue on an acting basis till August of 1998 when the then Minister for Public Services Mr Ling Stuckey commenced procedures for consideration of a replacement.

In November 1998 a submission to the National Executive Council (NEC) was prepared nominating three (3) candidates for consideration. They were, Iamo Ila, Kila Ai and Robin Moina. However the consultation process required by statute was no completed before there was a change of Minister and the submission did not proceed. An interim appointment of Mr Rigo Lua, the Secretary to the Public Services Commission, to act as a Commissioner was made on 20th of November, effective till the 20th December 1998. That appointment was extended by gazette notice of 21st December 1998 to 21st January 1999.

On 3rd December 1998 Mr Peipul was appointed Minister for the Public Services and became responsible for administration of the Public Service (Management) Act and the Public Service Commission. The need for a substantive appointment to the Public Service Commission was drawn to his attention by the Departmental Secretary and Mr Ila Geno the then chairman of the Public Service Commission also drew attention to this when he paid a courtesy call a few days after Mr Peipul’s appointment. Mr Paul Lawton the former Commissioner also wrote to the Leader on 7 December 1998 regarding the vacancy and offering his services.

The process leading to the appointment of Mr Moses Ipu Tawa as Commissioner commences from about this time. The first record of this is the Leader’s instruction to the Secretary of the Department on 9th December 1998 to prepare a submission to the NEC. That instruction was in the form of a hand written note by the Leader on a curriculum vitae of Mr Moses Ipu Tawa.

Mr Tawa’s C.V together with those of two other candidates Iamo Ila and Robin Moina, were annexed to an NEC submission dated next day, 10 December 1998. There is no evidence to suggest that any other candidates were sought or considered. The submission signed by the Minister recommended the appointment of Mr Tawa as a Public Service Commissioner.

The submission did not disclose that Mr Moses Ipu Tawa was the Leader’s younger brother nor that the statutory requirement of consultation with the Permanent Parliamentary Committee on Appointments had not been undertaken. The Leader attended the 16 December 1998 meeting of NEC, sponsored the appointment of Mr Tawa and voted on that decision. His submission and recommendation that Moses Ipu Tawa be appointed was approved.

On 17 December 1998 the NEC proceeded to advise the Governor General to appoint Mr Tawa as a Public Service Commissioner. That advice to the Governor General stated that its advice was given following the required consultation with the Permanent Parliamentary Committee on Appointments. The Governor General’s appointment recorded that advice also when gazetted on 24 December 1998.

The appointment attracted adverse comment in the public service and elsewhere. The Department Secretary Mr Kua learned of the non- disclosure from officers within the Public Service and counselled the Appellant that there had to be disclosure of his relationship to the NEC together with proper consultation with the Appointments Committee.

By letter dated 29 December 1998 the Appellant notified the Ombudsman Commission of the appointment of his younger brother as a Public Service Commissioner. He stated he was doing so pursuant to s. 6 of the Organic Law; that he had made the appointment in good faith and while presenting the submission to appoint to the NEC had declared his interest prior to a decision being taken.

The minutes taken of the NEC meeting make no mention of such disclosure. The Appellant advised the PM in writing, but that letter did not reach him till the meeting of 16th December 1998.

The Appellant also advised the Ombudsman Commission in the letter of 29 December, 1998 that "At this time Mr Tawa has not accepted the appointment. Subject to the response to this letter of disclosure by the Ombudsman Commission, he wants to be sure that proper procedures are being followed as he realises that with the appointment he too will be subject to the requirements of the Leadership Code". He sought advice of the Ombudsman Commission emphasising "the importance of encouraging and supporting integrity accountability and transparency........"

The Ombudsman Commission replied next day 30 December 1998, taking up the Leader’s concern, stating "as you suggest, the issues you have raised are very significant in terms of maintaining integrity, accountability and transparency in the making of public sector appointments".

The Ombudsman Commission pointed to Constitutional and Organic Law provisions relating to leadership actions and sought further specific information of the process of appointment by 5 January 1999 to enable a full and considered response.

The Appellant did not respond, so the Ombudsman Commission wrote further follow-up letters on 8 January and 3 February, 1999. The Appellant responded on 8 February, 1999, but did not advise that in fact in the interim, Mr Tawa’s appointment had been revoked and renewed by further submission to the NEC, on 4 January, 1999.

GROUNDS OF APPEAL

The appellant has pleaded five grounds of appeal:

1. Error of Law.
2. Want of Jurisdiction.
3. Unreasonableness of Decision.
4. Severity of Penalty.
5. Threshold Issues.
   

1. ERROR OF LAW

This ground contends that the learned trial judge erred in law when she ruled that the Tribunal had properly interpreted and applied the relevant Constitutional and Organic Law provisions; s. 27 of the Constitution and s. 6 and s. 15 of the Organic Law:

Three (3) sub grounds were argued as being areas of error:

1. finding that no evidence of personal gain was necessary.
2. finding that s. 27(1) was self executing; and
3. not giving the Appellant the benefit of Sch. 1.5 and s. 158(2) of the Constitution.
   

The Appellant first submitted that there was no evidence of any ‘transaction’ or ‘enterprise’ from which the Appellant would enjoy ‘personal gain’. This it was said is an essential element to be proved and in the absence of any such evidence these charges could not be sustained.

Secondly it was submitted that s. 27(1) is not self-executing, and that s. 27(2) is the executory provision. Consequently only when there is engagement in any activity under subs. (2) will it attract a duty under subs. (1). In the absence of such an engagement for ‘personal gain’, a leader cannot be liable for breach of a duty under s. 27(1).

The Respondent submitted that the learned trial judge dealt with each of the issues thoroughly and correctly, and committed no error of law.

It was submitted that it is not necessary that personal gain be proven for a leader to commit misconduct in office under s. 27(5) (b). A leader who fails to carry out any of the obligations imposed by subsection (1), (2) and (3) will commit misconduct in office. Section 27(2) is a stand alone provision which attracts penalty for using one’s office in the several ways described and that may give rise to doubt in the public mind as to whether the leader is carrying out duty imposed by subs.(1).

I consider that this ground of appeal has no merit. The learned trial judge correctly concluded that the Tribunal had properly interpreted and applied s.27 (1) and (2) to allegations 1 and 4. I consider that the interpretation contented for by the Appellant is not correct. Firstly s.27 (1) is self-executing and stands alone. Indeed each of the paragraphs (1) (a) to (d) are disjunctive and stand alone. Each one can in fact be pleaded and charged separately as an offence and can be sustained without the others. They are drafted in the alternative.

Each of subsections (2), (3) and (4) also are self executing stand alone provisions, the failure to comply with the requirements and duties imposed by each will result in a finding of guilt.

The learned trial judge and the Tribunal were therefore correct in concluding that ‘personal gain’ is not a necessary element to sustain a finding of guilt under any of the paragraphs 27(1)(a) to (d).

Section 27(2) is also a stand alone provision, and is not conjunctive with subsection (1). It prohibits the use of a leader’s office for; personal gain, or entering into any transaction or engaging in any enterprise which might be expected to give rise to doubt in the public mind as to whether the leader is carrying out or has carried the duty imposed by s. 27(1).

The third sub-ground that the learned trial judge erred by not giving the Appellant the benefit of sch. 1.5 and s.158(2) of the Constitution that provide respectively for fair and liberal meaning and dispensation of justice is also, in my opinion, without merit.

Appeal Relating to Allegations 2 and 5 and Section 6 of the Organic Law.

Two sub-grounds were argued, that the trial judge erred:

1. by not accepting the argument that the appellant’s action in arranging the revocation of his brother’s appointment "cured" the breach of Section 6 that would otherwise have persisted and;
   
2. by not accepting the argument that the Appellant’s letter of 29th December 1998 amounted to a disclosure of his interest in the matter of his brother’s appointment;
   

The Appellant conceded that disclosure of such an interest must be made prior to taking any action on the matter. But he submitted that in respect of the appointment made on 16th December 1998, it was rectified by the revocation of the appointment and the adoption of correct procedures and disclosure of the interest prior to the re-appointment on the 13th January 1999. It was submitted that that revocation had cured the breach which would otherwise have persisted. It was said that the Appellant’s letter of 29th December of 1998 to the Ombudsman Commission disclosed that interest and it was sufficient in respect of the re-appointment made on the 13th of January 1999.

It was also contended that the Ombudsman Commission failed to discharge it’s obligation under s.27(4) of the Constitution in not giving any directions in respect of the matter after the Appellant had notified it in this letter of 29th December 1998.

The Respondent contends that the learned trial judge again dealt with each of these issues thoroughly and correctly. There are no errors of law evident in the learned trial judge’s interpretation and application of s.6. The Tribunal had found and the learned trial judge affirmed that s.6 requires a leader to disclose his interest before dealing with a matter and not afterwards. The Respondent submitted that the Appellant’s contention that it is sufficient for a leader to reveal his or his associates interest in a matter after he has dealt with it and not before is plainly inconsistent with the way in which s.6 is meant to operate. It was submitted that s.6 in fact creates two separate requirements. First it is misconduct under s.6 (1) not to reveal such interest, and secondly under s.6(2) to deal with the matter without good faith and without compulsion of law or urgent necessity or authorisation by an appropriate authority is also a misconduct. Therefore the only practical way in which these two subsections can work together is to require generally that a leader reveals his interest before dealing with a matter.

I accept the arguments for the Respondent. Firstly, I consider that the Tribunal had applied the provisions of s.6 (1), (2) and (3) correctly, and the learned trial judge was also correct in upholding the Tribunal’s interpretation and application. The learned trial judge therefore, in my opinion, did not err in not accepting the Appellant’s two arguments.

It is not sufficient to say that a wrong decision or conduct is rectified or cured by its withdrawal or revocation. It may well be sincere and bona fide, if the initial decision or appointment was made quite innocently. But if circumstances indicate that such an initial decision was by design then any subsequent revocation or rectification by withdrawal does not cure the initial error. It is, in my opinion, a fairly basic requirement for transparency, good governance and accountability, that if a person has an interest in a particular decision, he should disclose that interest and refrain from taking part in any deliberations on the matter. It is good practise to disclose such an interest and not to participate in deliberations and the decision making process.

If the practice in the National Executive Council as given evidence of, in this particular matter, suggests that simply by disclosing such an interest and to continue to participate in the decision making process is prevalent, then in my opinion it is not good practice and indeed most inappropriate. In particular if the leader or the member of such an organisation is promoting the particular subject matter for deliberation and decision such as the Appellant in this instance, it is most inappropriate, notwithstanding the apparent permissiveness in the Organic Law, to be permitted to continue to participate in the deliberations and the decision-making. It is contrary to the principles of impartiality in decision-making and avoidance of conflict of interest.

The better course of action and practice that I now commend in all such situation of decision-making in public sector institutions from the National Executive Council, statutory boards and other executive decision making bodies, is for such members and leaders to disclose such interest and exclude themselves from the deliberations and the decision making process thereafter. To not to do that and to continue to participate in the debates and the decision-making process is to place one self in a position of conflict of interest.

It is also not sufficient at all to contend that the appointment was done in the best interest of the organisation and in good faith. To avoid conflict of interest situation, the wiser course is to not participate in any of the processes. Submissions may well be prepared in respect of persons one has some relationship with, so long as the process of screening of candidates is transparent and the candidate is presented on merit together with other candidates for the decision-making body to deliberate upon without the attendance and participation of the interested persons or leader concerned.

On the other hand it is far more preferable that should the candidacy of such a person, either a relative or an acquaintance is to be considered in the normal screening process, the leader or member of the decision making body ought not to become involved in any of the process at all but to disclose his interest and to withdraw from any involvement.

GROUND OF APPEAL RELATING TO ALLEGATION 3 AND APPLICATION OF SECTION 15(1) OF THE ORGANIC LAW.

This ground contends that the learned trial judge erred by finding that there was evidence that the Appellant had a beneficial interest in his brother’s appointment.

The Appellant says simply that for a charge under s.15 (1) to be sustained there must be proof of ‘beneficial interest’ in the appointment. It was contended that the fact that proposed appointee was the leader’s brother does not necessarily amount to beneficial interest.

In response, again, it was submitted that the learned trial judge dealt with this issue adequately as well as the Tribunal that the Appellant had an indirect beneficial interest in the matter of the appointment of his blood brother and he was obliged by s.15 to declare that interest. It was submitted further that the term ‘beneficial interest’ is not restricted to financial interest. A much broader test is to be applied such as: Did the leader stand to benefit directly or indirectly from the subject he was proposing to speak or vote on? Did the appellant stand to benefit in some way from the appointment of his brother? It was contended that to have a relative such as a blood brother so appointed would result in indirect beneficial interest to the leader and family.

I agree with the Respondent’s submission that there was no error by learned trial judge in affirming the Tribunals conclusion in respect of this particular allegation. The Tribunal found and the learned trial affirmed the fact that the leader did not disclose his relationship with the proposed candidate for appointment and which fact amounted to an indirect beneficial interest that should have been disclosed to the NEC prior to any deliberation upon the matter. This ground too is dismissed.

REASONABLENESS OF DECISION
This ground contends that the learned trial judge did not deliberate on the appeal based on the ground of unreasonableness of decision. It is contended that the Tribunal took no account or little account of the Appellant’s letter of 29th December 1998 and gave greater weight to the Ombudsman Commission’s letter of 30th December 1998 in response.

I accept the submission for the Respondent that the learned trial judge did deal adequately with this particular issue and therefore no error has been demonstrated.

In the end result therefore the appeal against the findings of guilt is dismissed.

APPEAL AGAINST SEVERITY OF PENALTY

The Appellant argued that the learned trial judge erred in ruling that the Tribunal took account of all material before it, in determining the appropriate penalty to be recommended. In particular it was contended that the Tribunal gave little or no consideration at all to the Appellant’s unblemished record of 26 years in the public service. Furthermore, it was contended that the trial judge erred in not upholding the application for review because the Tribunal made reference to matters that did not have evidentiary basis. For instance it was said the Tribunal made general comment that ‘helping of wantoks, clan or family in need is an honoured tradition of Melanesian society;" without evidence. Secondly "that engineering appointments to public office in denial of statutory procedure constitutes a fraud on the people of Papua New Guinea"; again when there was no evidence of fraud. Thirdly, whilst acknowledging that ‘while no charges of nepotism or wantokism had been brought before a Leadership Tribunal until now’, the Tribunal had no hesitation in condemning such behaviour as a most serious form of misconduct. And finally, it was argued that the Tribunal erred in imposing the extreme penalty of dismissal from office, to make an example of the Appellant when there was no evidence of prevalence of such conduct.

The Respondent again submitted that the decision of the learned trial judge took into account all the relevant factors and considered that the Tribunal had made no error. It was submitted that the Tribunal had correctly set out the penalty regime, reminded itself of the purpose of the Leadership Code, referred to relevant decisions of the Supreme Court and concluded that there was ‘serious culpability’ on the part of the leader and that ‘public policy and the public good’ required dismissal. The decision of the Tribunal was clearly within jurisdiction, it was said. It discharged its duty to investigate and inquire into the matter referred to it and acted fairly and reasonably in compliance with the principles of natural justice. The learned trial judge was therefore correct in upholding the determination of the Tribunal.

JURISDICTION OF SUPREME COURT

A preliminary issue was addressed as to whether this court has jurisdiction or power to interfere with the penalty recommended by the Tribunal. The court in the Nilkare decision, SCA 46 of 1996-Application Pursuant to Section 155(4) of the Constitution, Unreported Supreme Court Judgement-SC 536, held that pursuant to s.155(4) this court does have jurisdiction and thus power, consequent upon a review of findings of guilt to consider and vary as just and appropriate recommendations on appropriate penalty. I refer to and adopt the joint judgement of Amet, CJ and Los, J in its entirety in respect of this issue in this case.

This appeal of course comes by way of motion under Order 10 of the Supreme Court Rules. But I consider that for all practical purposes it is the same in substance as if it were a review under s.155(2)(b) and s.155(4) of the Constitution. This court has jurisdiction and the power to review all judicial acts of the National Court. If the National Court had power upon review to vary the finding of guilt as well as the recommendation of penalty then this court, upon further review, by either an appeal or in it’s inherent power to review, do likewise. If this court found that the National Court had erred and thereby quashed the National Court’s decision, then it also has the inherent power to do likewise in respect of recommendation as to penalty. For instance if this court were to find that the National Court’s judgement on the review against the penalty recommended by the Tribunal were to have been in error and that the National Court ought to have upheld the application for review against the severity of penalty recommended, then of course this court must have the inherent ability to correct such an error. As the National Court can quash the primary Tribunal’s findings of guilt and thus the consequential recommendation as to the penalty or indeed to recommend variation of the penalty, dependent upon the gravity and culpability of the finding of guilt, then of course the Supreme Court, being a superior court has all the powers that the National Court has, as well and more, to do justice in a particular circumstance.

It is the very issue addressed by the Nilkare decision that it would be most inappropriate and unjust that if some parts of findings of guilt were to have been varied and reduced that the penalty recommended would remain unaffected.

I have no doubt that this court, under its inherent--------------------- plenary power under s. 155(2)(4) has jurisdiction and power to do justice in an appropriate case and to review and recommend appropriate adjustment to penalty as may be necessary.

Retuning to the circumstances of misconduct by the Appellant, as found by the Tribunal and affirmed by the National Court and as I also uphold, are recommendations for the ultimate penalty of dismissal from office the most appropriate and commensurate with the culpability of misconduct, in each of the five charges? Does ‘public policy and public good’ require dismissal? I return to my conclusions shortly.

PENALTY REGIME UNDER THE LEADERSHIP CODE

I raised with Counsel whether the manner in which Leadership Tribunals, and upon review, the National and the Supreme Courts, have been treating the determination and recommendation of appropriate penalty was what was in fact intended and envisioned by the founders of the Constitution and Leadership Code regime.

This aspect of the Leadership Code has exercised my mind over some period of time. As I examine the relevant provisions, it impresses me that it was not intended that each alleged incident of misconduct which a leader may be found guilty of, attracts a penalty disjunctively from other related allegations of misconduct that are charged in the same proceedings. The scheme of the Code provisions as drafted in s. 27, in my opinion affirms this approach. As will be noted s. 27(1) (a), (b), (c), (d), (2), (3) and (4) provisions are each drafted in the affirmative and against each of which provision there is not the commonly found provision, such as in Part VI of the Organic Law and Criminal Code offences that say that such conduct result in an offence with the requisite maximum penalty also prescribed against each. Section 27(5) is an all-inclusive provision for the finding of guilt of misconduct in office. And then under s. 28 (1A) provisions is made for an Organic Law to make further provisions for penalty. Section 27(5) of the Organic Law and later of the Leadership Code (Alternative Penalties) Act 1976 make the further provisions for alternative penalties to implement sections 28(1A) of the Constitution and s. 27(5)(b) of the Organic Law.

In reading these various provisions together, I am of the opinion that it was not intended that against each provision such as 27(1)(a), (b), (c) or (d) or 27(2), (3) or (4) individual disjunctive penalties be imposed, but rather findings of guilt may be made in respect of such distinct alleged offences and that the consideration and the determination of appropriate penalty to be recommended to the appropriate authority is to be in respect of the totality of conduct or conducts found to be in breach of the Leadership Code requirements.

I believe that such an approach is intended to take place at the end of the final determination of guilt or innocence, to look at all of the conduct in their totality in the consideration and application of s. 28(1A) as to whether there was no serious culpability on the part of the person found guilty of misconduct and whether public policy and public good do not require dismissal.

If the Tribunal so concludes then it may recommend to the appropriate authority that some other penalty as provided for by the Leadership Code (Alternative Penalties) Act 1976 be imposed.

If the conduct amounts to serious culpability and public policy and public good require dismissal then that subsumes all of the other alternative penalties as may well have been considered appropriate for each of the distinct alleged offences if they were to have been the only offence committed. The ultimate sanction under this Leadership Code regime is of course to remove such a leader who so misconducts himself from public office for the protection of the people. If this is not appropriate because the misconduct does not amount to serious culpability and that public policy and public good do not require dismissal, then under the Alternative Penalties Act the alternative penalties also ought in my opinion to be considered to be imposed in respect of the totality of the misconduct rather then against distinct incidences misconduct that are a part and partial of a single conduct as might be alleged under s. 27(1)(a), (d) and (2), (3)(a), (b) and (4) of the Constitution.

APPLICATION OF PENALTY REGIME TO THIS CASE

Is the judgment of the Tribunal in respect of each of the five (5) charges that each of them was of such serious culpability and that public policy and public good warranted dismissal correct? Did the National Court deal with this application for review of the consideration and determination of the appropriate penalties to be recommended sufficiently and adequately in-law? Delineating each of the five (5) allegations and findings of guilt by the Tribunal, standing alone, could each be said to be of such ‘serious culpability’ that ‘public policy and public good’ required the ultimate penalty of dismissal from office?

Put conversely, does s. 28(1)(g) direct that the Tribunal shall only recommend that a person found guilty of misconduct in office be dismissed from office unless pursuant to s. 28(1A), it finds that –

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

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

that it may recommend to the appropriate authority that some other penalty provided for by the (Alternative Penalties) Act 1976 be imposed?

I am prepared to accept the proposition that s. 28(1) (g) does imply that in all findings of guilty of misconduct in office the Tribunal starts with the primary premise that it shall recommend dismissal from office unless pursuant to s. 28(1A), (a) and (b) it found that there was no serious culpability and that public policy and public good do not require dismissal. I am satisfied that these two provisions under s. 28(1A) are to be read together in the context of the total circumstances of the conduct of the leader, so that they are applied in their totality in arriving at the conclusion as to whether or not dismissal is to be the appropriate penalty to be recommended or that alternative penalties under the Alternative Penalties Act are appropriate to be recommended for imposition.

Returning again to the factual circumstances of the conduct of this Appellant, viewed in their totality from the direction to the Departmental Head and the initial appointment of his brother by the NEC, to the subsequent processes of revocation of that appointment and reappointment by the NEC, standing back and reviewing all of that in its totality, can each distinct finding of misconduct, as charged, be such as to warrant dismissal only?

Put another way applying s. 28(1A), can it be said that the Tribunal was correct in its conclusion that the conducts were such that it could not find that there was no serious culpability on the part of the Appellant and that the Tribunal could not find that public policy and public good did not require dismissal such that dismissal was the only penalty to be recommended for imposition.

Put another way still can it be said on all of the factual circumstances found by the Tribunal, that such conduct as separately charged in the five (5) allegations were of such serious culpability that public policy and public good only warranted dismissal, in respect of each charge?

Did the learned trial judge deal with the penalty issue thoroughly as contended for by the Respondent? The learned trial judge in her judgment referred to several relevant excerpts from the Tribunals decision and quoted the following:

(i) ‘his action was a step in a deliberate cause of conduct to engineer his brother into a public office’
(ii) "rather than obtaining the advice that he had himself sought from the Ombudsman Commission, he set out on a cause of further deception instead."
(iii) "----satisfied that misconduct shown is of such serious culpability that only a recommendation of dismissal is appropriate."

The following further Tribunal comment was referred to by the Court:

"----thus when the leaders conduct is taken step by step or in the whole, it shows a deliberate flouting of the appointment procedures and leadership duties. The only recommendation of penalties must be for dismissal.

As I refer to the Tribunals reasons for recommendations on penalty, I agree with the learned trial judge’s conclusion that these comments do reflect the serious view that the Tribunal took of the Appellant’s conduct and proceeded to recommend dismissal in respect of each of the charges. I acknowledge the Tribunal has dealt with the adverse circumstances quite substantially and fully, as the trial judge affirmed.

Upon reflection however, as I review the totality of the processes and conduct of the Appellant, and granting that he is a considerably experienced leader having held senior public service offices over a period of 26 years, I am nevertheless impressed by the fact that these processes and procedures were not done in isolation and by the Appellant alone and in person. The initial administrative action that initiate the process of filtering and nominating suitable candidates and the appropriate documentation are processed through the public service administrative machinery, such as through the Public Services Commission and or the Department of Personnel Management. The direction or instruction might well have been given by a Minister such as the Appellant, but it nevertheless is required to be processed by the most senior public service official such as the Secretary of the Department of Personnel Management. In my opinion therefore it is incumbent upon such public service senior departmental officials to advise the political head of a Department or Ministry, of all the necessary statutory procedures and its requirements. It is not sufficient for highly qualified and experienced public service departmental officials to contend that they were directed to do certain things, apparently contrary to procedure and statutory requirements. It is their duty as experienced departmental officials to advise what the appropriate course of conduct should be.

Also it would seem to me that the practice, before the NEC, lends itself to conflict of interests. The evidence of the Secretary to the NEC that the practice of the Council had been for members to declare their interest but continue to participate in deliberation and decision making, quite contrary to the requirements of Section 15(3) of the Organic Law. It would seem that, following disclosure of his interest in relation to the re-appointment of his brother, the Appellant was permitted to continue to participate in the deliberation and the decision subsequent thereto. Better practice of course ought to have been that upon such a disclosure, the Appellant ought to have been excused or excused himself and not participate in any decision making process until that was concluded one way or another.

The essence of these observations are that the decision making process in relation to these charges, are of a public nature involving individuals of high level institutions of the public service including the Public Services Commission, the Department of Personnel Management and its Departmental Secretary and the Secretary of the NEC and the National Executive Council itself in its deliberation. The incumbent heads of these structures and the system is intended to ensure that no individual should manipulate and corrupt processes for selfish personal benefits.

I have come to the view therefore that an individual leader in a position such as the Appellant ought not to be held totally responsible and made a scapegoat for an endemic system deficiency that has become entrenched, over a long period of time.

In all the circumstances, as found by the Tribunal, that I accept, and as mitigated by my views herein expressed, I do not believe that each of the distinct findings of misconduct in office, standing alone, is of such "serious culpability" that "public policy and "public good" requires dismissal from office in each. I believe alternative penalties under the Alternative Penalties Act are appropriate to be considered.

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

For example, for allegation 3, for failing to disclose to the NEC meeting in December, 1998 that the person he was recommending to be appointed as a member of the Public Service Commission was his brother, and taking part in the decision making, the Appellant is recommended to be dismissed. The decision is made by the NEC, presumably with some substantive consideration as to merit. Is it at all credible that, standing alone, this misconduct should only result in recommendation for dismissal? I believe not. This simply illustrates the error in approach to the issue of appropriate penalties to be recommended for imposition.

Because there is less than one month before voting begins in the national elections, the alternative of suspension from office as a Member of Parliament is not meaningful in the balance of the term parliament remaining.

Consistently with the views I have expressed above, on the penalty regime, I propose a single penalty.

I would quash the penalties recommended by the Tribunal and pursuant to s. 2(a) of the Alternative Penalties Act recommend a total penalty of K5000.00.

I also agree generally with the opinions expressed by my brothers Sir Kubulan J and Injia J in relation to penalty.

KAPI, DCJ: This is an appeal from the National Court by way of notice of motion under O 10 of the Supreme Court Rules (see also O16 r 11 of the National Court Rules). The circumstances leading to this appeal are adequately set out in the judgment of Sawong J and it is not necessary to repeat them here.

GROUND 2

The appellant relies on 5 grounds of appeal. Ground 2 may be dealt with very briefly. I do not understand counsel for the appellant to be arguing that the Leadership Tribunal has no jurisdiction to enforce the Leadership Code under the Constitution and the Organic Law on Duties and Responsibilities of Leadership (OLDRL). There is no question that the Leadership Tribunal is specifically empowered by the Constitution and OLDRL to deal with Leadership Code offences. He merely argues that the Leadership Tribunal erred in law in its interpretation and application of the relevant provisions of the Constitution and OLDRL. The alleged errors of law are raised in ground 1 of the appeal. Ground 2 of itself does not raise any other substantial issue and therefore I would dismiss it.

GROUND 5

Ground 5 raises what has been designated as the threshold issues. The first point relates to whether the appellant was entitled to raise the issues of the proper interpretation and application of the relevant constitutional laws that were not raised before the Leadership Tribunal. This is no longer a live issue because the trial judge ultimately considered and determined the issues. As I have already pointed out, these issues are set out in ground 1 and I will consider them later.

The second point in ground 5 relates to the question whether the Supreme Court has jurisdiction to the exclusion of any other court or tribunal to interpret and apply constitutional laws pursuant to s 18 (1) of the Constitution. This ground was not raised in the statement filed pursuant to O 16 r 3 (2) (a) of the National Court Rules. There was no application in the National Court to amend the grounds to add this ground pursuant to O 16 r 3 (4) of the National Court Rules. The trial judge was plainly right in ruling that the appellant was not entitled to raise this issue.

Nevertheless, the trial judge heard and determined the issue. The ruling by the trial judge on this point did not result in any consequential order invalidating the whole of the proceedings before the Leadership Tribunal. Whilst there may be some doubt about the correctness of the conclusion reached by the trial judge on this issue, I agree with Dr Nonggor, counsel for the Public Prosecutor that the determination of this point will have no bearing on the decision of the Leadership Tribunal. It is apparent from the decision of the trial judge that she proceeded to deal with the issues of law on the basis that the Leadership Tribunal has jurisdiction to hear and determine Leadership Code offences under the relevant provisions of the Constitution and OLDRL. There is no other substantive issue raised in ground 5 and I would dismiss it.

The substantive issues are raised in grounds 1, 3 and 4 of the appeal.

The judicial review proceedings in the present case were instituted in the National Court pursuant to O 16 of the National Court Rules. This Order regulates the practice and procedure for common law prerogative writs as well as remedies for injunctions and declaratory orders. Essentially, actions commenced under this Order are common law remedies adopted as part of the underlying law pursuant to Sch.2.2 of the Constitution. These remedies have their source in common law and apply independently from the constitutional remedies set out under s 155 (4) of the Constitution. The constitutional remedies are expressed "...orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case." I pointed out these two related but distinct remedies in SCR No 2 of 1981 [1982] PNGLR 150.

So far as reviewing decisions of statutory authorities or tribunals such as Leadership Tribunal are concerned, the common law principles governing judicial review have been adopted and are well settled in our jurisdiction as part of the underlying law. These principles are set out in Kekedo v Burns Phillip [1988-89] PNGLR 122. Judicial review is available where the decision making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers. These principles are also summarized in SC Rev. No 1 of 1990 [1990] PNGLR 441 by Sheehan J at pages 454 to 455 (see also Erikon v PNG Coffee Industry Board [1992] PNGLR 56). Numerous cases have followed and applied these principles.

GROUND 1

The first part of Ground 1 alleges errors of law in the interpretation and application of s 27 (1) (a), (1) (b), (1) (c) and 1 (d); s 27 (2); and 27 (5) (b) of the Constitution. These issues arise out of Allegation 1. Counsel for the appellant alleges errors of law. He argues:

(1) That the allegations did not allege a specific duty to have been breached.
(2) That the allegations are expressed in very general terms.
(3) That "personal gain", "transaction," and "enterprise" are essential elements of offences prescribed under s 27 (1) of the Constitution.
(4) That section 27 (1) of the Constitution is not self-executing.
(5) That section 27 (2) and (3) are the executory provisions which if breached will attract the duties imposed under s 27 (1).
(6) That the circumstances in the present case would justify a charge under s 6 of the OLDRL and not under s 27.
(7) That the interpretation advocated on behalf of the appellant should be adopted as fair and liberal interpretation of the Constitution and would achieve dispensation of justice according to s 158 (2) of the Constitution.

The trial judge carefully summarized all the arguments by counsel for the appellant and concluded:

"I find that the contention there must be some "personal benefit" or "personal gain" by the plaintiff before he could make out an offence under s 27 is a very restrictive interpretation indeed and would therefore defeat the entire thrust and purpose of Section 27 as well as the whole Leadership Code. Obviously, Section 27, is not restricted to "personal gains" only, as it sets out various offences. The argument that there must be a "personal gain" before an offence can be committed under Section 27 is spurious, misleading and misconceived.

The effect of a clear literal interpretation is that a leader who fails to carry out any of the obligations imposed by subsection (1), (2) and (3) commits a misconduct in office.

It would defeat the purpose of the Leadership Code to require a tribunal to find that there was personal gain in every allegation of misconduct. Furthermore personal gain is an unqualified term. The Leadership Code is intended to cover a broad range of misconduct. Leaders are required to follow proper appointment procedures.

Although the Plaintiff requests a liberal interpretation of these provisions, he in effect is very restrictive in his analysis or interpretation of the provisions in question. In saying that, I note the number of cases decided previously by the courts who have demonstrated or taken a strict approach in judicial review of decisions of leadership tribunals...

Again, in the leave Application, Justice Kandakasi made this absolutely clear when he said that if the term "personal gain" as used in Section 27 (2) of the Constitution was interpreted and applied in the way argued by the plaintiff, that term will be restricted to monetary or some tangible gain only. That would defeat the purpose and or aim of having the provisions of the Constitution and the relevant Organic Law.....

In my view, the intent or the purpose of having the provisions in question was to prevent leaders from using their position and power for all manner of personal gain howsoever remote that might be. These provisions were made to ensure that leaders do not misuse their privileges or engage in corrupt practices. They are there to ensure that leaders conduct themselves in a fair and transparent manner. I am of the view also, that Parliament made no mistake in not putting any qualification to the phrase "personal gain". This was deliberately done to cover all situations, however slight it might be for the integrity of public offices and for good transparent governance. The aim was to protect the country from unscrupulous and unbecoming behaviour by our leaders."

In my view, the trial judge did not make any error of law in her conclusions. The strength of arguments by counsel for the appellant was lost when he conceded during the hearing before us that offences prescribed under s 27 (1) (a) (b) (c) and (d) are distinct offences and they stand on their own.

Furthermore, he conceded that the offence prescribed under s 27 (2) is a separate offence, namely, that certain conduct "..might give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by Section (1)." There are four different kinds of conduct which may constitute this offence; (a) "use his office for personal gain" (b) "enter into any transaction" (c) "engage in any enterprise" and (d) or engage in "activity". This offence is different from the offences prescribed under s 27 (1).

These concessions are consistent with the views I expressed in Application by John Mua Nilkare (Unreported judgment of the Supreme Court dated 10th April 1997, SC 536). In considering the same provisions, I stated at page 26:

"...s 27 of the Constitution is concerned with responsibilities and conduct of leaders. Subsec (1) deals with the ‘duty to conduct himself in such a way, both in his public or official life and his private life’. This relates to (1) conduct generally and (2) in his association with other persons. The nature of conduct which may result in misconduct are itemized s 27 (1) (a) – (d). This conduct includes behaviour on the part of the leader where there may be conflict of interest or where the leader’s position may be compromised (s 27 (1) (a)).

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

In the present case, the Public Prosecutor under "Allegation 1" charged the appellant with five distinct offences; four separate offences under s 27 (1) and one offence under s 27 (2). In respect of the latter, the Public Prosecutor alleged that the leader engaged in an "activity" and not "use of office for personal gain or enter into any transaction or engage in any enterprise".

The complaint that the allegations were expressed in general terms has no merit. First, the allegations were expressed in terms of the Constitution. The offences prescribed by the Constitution are deliberately expressed in very wide terms to cover a wide range of conduct. This cannot be a basis for arguing that the allegations are bad in law.

Second, the allegations spelt out in some detail the conduct that is alleged to constitute the various offences. There is no merit on this point.

In my view, there is no merit in any of the propositions relied on by counsel for the appellant. The Leadership Tribunal was correct in its interpretation and application of the relevant constitutional laws. I do not find any error of law in the decision of the trial judge in upholding the decision of the Leadership Tribunal and I would dismiss this part of ground 1.

The second part of ground 1 relates to issues of law arising out of Allegation 2 brought under s 6 of OLDRL. The allegations relate to the initial appointment on 16th December 1998 and the revocation and re-appointment on the 13th January 1999. I shall first deal with the appointment on 16th December 1998.

In respect of Allegation 2, counsel for the appellant concedes that this is the appropriate charge that should have been brought against the appellant as opposed to charges under s 27 (see ground 3 (1) (a) (ii) of the Notice of Motion).

Furthermore, counsel for the appellant also concedes that no prior disclosure was made to the Ombudsman Commission and the National Executive Council (NEC) in respect of the appointment on the 16th December 1998 and that a breach had occurred (see ground 3 (1) (b) (i) of the Notice of Motion).

However, his contention is that the breach of s 6 was cured by the subsequent revocation of Mr Tawa’s appointment and re-appointment by the NEC on 13th January 1999. I accept the proposition that the appellant breached s 6 of OLDRL in respect of the appointment on the 16th December 1998. Both the Ombudsman Commission and the NEC had no prior disclosure of the appellant’s relationship to Mr Tawa.

The fact that the appointment was subsequently revoked has no bearing on the breach of s 6 of OLDRL in respect of the appointment on the 16th December 1998. The revocation is an admission of the breach of s 6 OLDRL. The revocation and re-appointment of Mr Tawa is the subject of Allegation 5 and I will consider it separately.

In my view, the Leadership Tribunal did not err in law when it convicted the appellant of the breach of s 6 of OLDRL in respect of appointment on 16th December 1998. It follows that the trial judge was correct in dismissing this argument.

I now turn to consider the conviction in respect of the revocation and the re-appointment on 13th January 1999. Counsel for the appellant argues that appellant’s letter dated 29th December 1998 was sufficient notice to the Ombudsman Commission for the purposes of the revocation and re-appointment on 13th January 1999.

On the other hand, counsel for the Public Prosecutor submits that while there may have been disclosure to the NEC, there was no notification to the Ombudsman Commission on the issue of revocation and re-appointment on 13th January 1999.

I have carefully read the contents of the letter of the 29th December 1998 and conclude that the appellant himself was well aware that he had breached the provisions of s 6 of the OLDRL by not disclosing his relationship to Mr Tawa to the Ombudsman Commission. In this letter, the appellant requested the Ombudsman Commission to consider taking appropriate action to correct the situation. He pointed out several steps that the Ombudsman Commission may consider, including the possible revocation of Mr Tawa’s appointment. I should point out that this did not constitute notice of any intention on the part of the appellant to revoke the appointment of Mr Tawa. I reject the suggestion by counsel for the appellant that this letter advised the Ombudsman Commission that he intended to revoke Mr Tawa’s appointment.

Furthermore, there is no notice of any intention by the appellant to seek the re-appointment of Mr Tawa after the revocation. The letter of the 29th December cannot be taken as disclosure of his interest for the purposes of the revocation and re-appointment of MR Tawa. It follows from this that the Ombudsman Commission was not notified of the revocation and re-appointment contrary to s 6 of OLDRL. The Leadership Tribunal was correct in its conclusion and the trial judge rightly upheld the decision of the Leadership Tribunal. I would dismiss this ground of appeal.

Counsel for the appellant further alleges error of law in respect of the interpretation of the words "direct or indirect beneficial interest" under s 15 of the OLDRL. This issue arises out of Allegation 3. Before the trial judge, counsel for the appellant argued that the Leadership Tribunal failed or neglected to properly interpret the meaning of the words "direct or indirect beneficial interest" under s 15 (1) of OLDRL. He argued that these words should be interpreted to mean that a leader must have some monetary or other material beneficial interest.

The trial judge interpreted these words widely to include blood relationship as coming within the meaning of "direct or indirect beneficial interest" and dismissed the argument.

In my view, the words "direct or indirect beneficial interest" is intended to cover a wide range of interests. However, an interest must have some benefit to the leader. A leader who receives monetary, material, service or some other personal advantage or favour directly, would come within the meaning of having a "direct...beneficial interest".

The words "...indirect beneficial interest" is intended to cover benefits (such as the ones outlined above) to others but can be said to indirectly benefit the leader. It is not necessary to exhaustively define the circumstances that can be said to come within this definition. An appointment of a blood brother to a position such as in the present case is a direct benefit to the brother.

The question is, whether, the leader would have an "indirect beneficial interest" in the appointment of the brother? In my view, having regard to the nature of our Melanesian society, a leader would have an "indirect beneficial interest" in the appointment. A blood brother appointed to a paid job would bring benefits to the family to fulfil family obligations such as bride price payments, funeral expenses, compensation payments and other customary and family obligations to mention only the obvious benefits. I am satisfied that a leader who takes part in the appointment of a blood brother to a paid job has an "indirect beneficial interest" in the sense I have explained.

I have interpreted this provision within the context of the reality of our unique Melanesian society as recognized by the National Goals and Directive Principles (see in particular Principle 1 (5) and (6) and Principle 5 (3) and (4) in the Constitution).

Moreover, the Preamble to the Constitution recognizes our traditions:

"WE THE PEOPLE OF PAPUA NEW GUINEA-

......

pledge ourselves to guard and pass on to those who come after us our noble traditions....that are ours today."

Therefore, I conclude that the trial judge did not err in her interpretation of the provision. I would dismiss this ground.

GROUND 3

Counsel for the appellant in ground 3 of the appeal raises unreasonableness under Wednesbury Principles in respect of the weight given to appellants letter dated 29th December 1998 and the response by the Ombudsman Commission in its letter dated 30th December 1998. This ground does not indicate clearly the subject to which the error relates. The written submissions filed by counsel for the appellant on this ground is not helpful either in this respect.

On close reading of all the grounds of appeal, ground 3 cannot relate to penalty as ground 4 of the appeal raises issues relating to penalty. I take this ground to relate to the conviction in respect of Allegation 5 brought by the Public Prosecutor. After making reference to the two letters in question, Ground 3 of the notice of motion further states:

"That after having failed to give advice or directions pursuant to the Applicant’s request as contained in the Applicant’s said letter of 29th December 1998, it is unreasonable to then treat that Applicant as if he has failed to reveal or disclose the matter pertaining to the appointment of Mr Tawa."

This ground seeks to show that the letter of the 29th December 1998 by the appellant constitutes a reasonable disclosure to the Ombudsman Commission of the revocation and re-appointment of Mr Tawa on 13th January 1999.

Judicial review is not concerned with the decision but the process of decision making. The exception to this is what has been referred to as the Wednesday Principle in the landmark case of Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1; [1947] 2 All E R 680. In dealing with the question of courts reviewing discretionary power granted by Parliament to local authorities, Lord Green stated:

"When an executive discretion is entrusted by Parliament to a local authority, what purports to be an exercise of that discretion can only be challenged in the courts in a very limited class of case. It must always be remembered that the court is not a court of appeal. The law recognizes certain principles on which the discretion must be exercised, but within the four corners of those principles the discretion is an absolute one and cannot be questioned in any court of law."

Lord Green however went on to state the general proposition that:

"Similarly, you may have something so absurd that no sensible person could ever dream that it lay within the powers of the authority."

This proposition was further amplified in R v Hillingdon London Borough Council [1986] UKHL 1; [1986] AC 484 at 518:

"The ground upon which the courts will review the exercise of an administrative discretion is abuse of power – e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity (for example, breach of natural justice), or unreasonableness in the Wednesbury sense – unreasonableness verging on absurdity...Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and the fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely."

The Leadership Tribunal in the present case considered the two letters and made its finding. It stated:

"The evidence is uncontested that in fact the Leader after he had revealed the appointment of his brother to the Ombudsman Commission by his letter of 29th December 1998 did not disclose his proposal or his actions in seeking the revocation of the first appointment and re-appointment."

It cannot be said that the Leadership Tribunal in reaching this decision acted perversely or that it was an absurd finding. I would dismiss this ground.

GROUND 5 - PENALTY

Counsel for the appellant in ground 4 alleges errors of law in respect of the penalty. I adopt the principles established by the Supreme Court in Application by John Mua Nilkare (supra). This was an application under s 155 (4) of the Constitution but the Court applied the common law principles in reviewing penalty. At page 36 I stated:

"Several issues arise for our consideration in respect of these penalties. The first is, whether, this Court has any jurisdiction to review the penalties imposed by the Tribunal? The second is, if the Court has jurisdiction to review, do proper grounds exist to quash the penalties? The third is, if this Court quashes the penalties, would this Court have power to substitute its own penalty?

I will deal first with first question. Counsel for the applicant submitted that even though the penalty recommended was within the four corners of the discretion to punish, nevertheless, the penalty imposed was so unreasonable that no tribunal could have imposed such a penalty (Wednesbury case (supra). This order which is in the nature of certiorari comes within the terms of the first limb of s 155 (4) of the Constitution. It is the same power we have exercised in respect of the convictions by the Tribunal.

The question is whether, the Tribunal has wrongly exercised its discretion in the manner set out in Wednesbury case? In order to answer this question we have to determine the nature of the discretion given to the Tribunal by law. The relevant law can be found in the following provisions: Section 28 (1)(g) (ii) and 28 (1A) of the Constitution; s 27 (5) of OLDRL and s 2 of the Leadership Code (Alternative Penalties) Act (Cap 1A). The combined effect of these provisions are that a person who is found guilty of misconduct in office shall be dismissed from office unless the Tribunal finds that there is (1) no serious culpability on the part of the leader and (2) public policy and the public good do not require dismissal of the leader. If a tribunal is satisfied of these two matters, it may recommend a lesser penalty set out in s 2 of the Leadership Code (Alternative Penalties) Act.

...The Court cannot interfere as an appellate authority would but only as judicial authority concerned to see whether the Tribunal has contravened the law by acting in excess of its powers (see Central Pomio Logging Corp. Pty Ltd v The State [1992] PNGLR 20 at 25. See also Application by Posai [1995] PNGLR 300 at 353 – 354."

The majority opinion of Amet CJ and Los J adopted the same approach at page 59:

"We consider where the tribunal acted within the law this court should indeed be reluctant to interfere with its decision."

In Application by Posai [1995] PNGLR 350, an application for leave for judicial review of penalty imposed by the Leadership Tribunal, Sheehan J stated at page 353:

"But it is vital that the court, in exercising a power of review, keeps in mind that its role is one of supervision only; that is to say, a role to ensure fairness by public authorities in the exercise of their powers, bearing in mind, that it is the public authority that retains, at all times, the Parliament – authorized power of decision.

‘...it is important to remember in every case that the purpose of (judicial review) is to ensure that the individual is given fair treatment by the authority to which he has been subjected and it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question’ Chief Constable of North Wales Police v Evans [1982] UKHL 10; [1982] 1 WLR 1155 at 1160.

That is another way of saying that the court must not act as a court of appeal. The court cannot make the decision of the public authority for it. All that is empowered to do is to ensure that the decision is made according to law and within the jurisdiction given to that body."

He went on to state at page 354:

"In judicial review, this Court cannot itself exercise the discretion, even if it were to disagree with the determination made. It cannot act as a court of appeal. It cannot substitute its own view of what penalty should be imposed. All that it can do in review is to determine whether the Leadership Tribunal exercised its discretion lawfully and in accordance with the powers given to it by the Organic Law."

This approach is consistent with the majority decision in Gabriel Dusava v The Hon. Madam Justice Teresa Doherty, Steven Oli and John Numapo (Unreported judgment of the Supreme Court dated 1st October 1999, SC 629). This was a judicial review of amongst other issues, penalty imposed by the Leadership Tribunal.

In Nilkare’s case (supra), the majority quashed the penalties imposed by the Tribunal on the basis that serious culpability of the leader was reduced by setting aside several convictions. The majority explained on page 59:

"The tribunal was bound to recommend dismissal because it had found serious culpability on the part of the leader. In count 29 for example the tribunal felt bound to recommend dismissal and said ‘the count may not appear serious...however in view of the range of other counts... we feel this count should be dealt with in similar vein.’ We consider however, that after the decision of this court the culpability of the leader has been considerably lessened. It has been lessened in respect of range, number and extent so that serious culpability on the leader no longer exists."

In Dusava’s case (supra) Kirriwom J distinguished Nilkare’s case on this basis.

"I do not find that case as setting any precedent for this Court to follow because the circumstances there were completely different to the one before us now. On review of the Tribunal’s decision in that case, the Supreme Court sitting as the Court of first instance upheld the applicant’s submissions by two-one majority and over-turned the Tribunal’s recommendation of dismissals and substituted fines instead. The difference in that case is that the Supreme Court quashed the convictions with respect to most of the charges primarily on the basis that the leader did not derive personal enrichment. In this case, all charges which were proven and remain intact, ...."

In the present case, counsel for the appellant alleges 5 errors. The first error alleged is that the Leadership Tribunal gave little or no consideration at all to mitigating factors including the appellant’s unblemished record of 26 years in the public service. I have no difficulty in concluding that the Leadership Tribunal had regard to and took into account all the relevant mitigating factors. It stated:

"We have considered the Leader’s affidavit tendered in mitigation and heard Mr Tilto’s detailed submissions on his behalf. He pointed out that until these charges; the Leader has had a distinguished and unblemished record of public service to Papua New Guinea over a period of 26 years. We accept that this is so....

Mr Toilto urged that Tribunal consider the misconduct now found, to be out of character, that the Leader regretted his actions and he said his perception had been clouded by his relationship to his brother."

This passage shows that the Leadership Tribunal took into account all the relevant matters. There is no merit in this ground and I would dismiss it.

Second, counsel for the appellant alleges that the Leadership Tribunal among other considerations, drew a general comment that "...helping of wantoks, clan or family in need is an honoured tradition of Melanesian Society". This is a relevant consideration on penalty.

Counsel for the appellant has not denied that helping of wantoks, family and clan members is an honoured tradition. The complaint is that there was no evidential proof. The Leadership Tribunal is not a judicial proceeding and therefore is not bound by strict rules of evidence (see s 28 (5) of the Constitution). The members of the Leadership Tribunal were entitled to have regard to this consideration from their own knowledge. We all know that this is a well known aspect of our society. There is no merit in this ground and I would dismiss it.

The third ground alleges that the Leadership Tribunal, "after having acknowledged that ‘...while no charges of nepotism or wantokism had been brought before a Leadership Tribunal until now, it had no hesitation in condemning such behaviour as most serious forms of misconduct,’ it committed an error in that there was no prevalence of such conduct as acknowledged by the Tribunal itself, and to impose the extreme penalty of dismissal of the appellant from office, is to make an example of him which in itself is harsh, oppressive and unfair.

This ground raises two points. The first is that this kind of offence is not prevalent. The Tribunal acknowledged this and proceeded to dismiss the appellant. There is no principle of law that requires that first offence of a kind should not be considered as serious offence and therefore ought to attract a lesser penalty. That of course is a relevant consideration on penalty, and the Leadership Tribunal took this into account and then exercised its discretion in the manner it did.

The second point is that dismissal from office is harsh, oppressive and unfair. These are valid grounds in appeals against sentence in criminal cases. That is not the issue when reviewing the powers of the Tribunal on penalty. The issue is whether the Tribunal correctly applied the applicable law on penalty. Under s 28 (1) (g) (ii) of the Constitution, a tribunal must dismiss a leader from office subject to the two considerations in s 28 (1A). This ground does not allege that the Tribunal failed to apply these provisions nor does it allege that the Tribunal exercised its discretion wrongly in the Wednesbury sense under s 28 (1A). I will consider in detail the manner in which the Tribunal exercised it discretion under s 28 (1A) later in my judgment.

The forth ground alleges that the Leadership Tribunal erred when it stated that "...engineering appointments to public office in denial of statutory procedure constitutes a fraud on the people of Papua New Guinea", when there is no evidence of fraud.

In my view, counsel for the appellant has missed the point of what the Leadership Tribunal meant by this comment in the context of the circumstances of this case. I agree with counsel for the Public Prosecutor that what the Leadership Tribunal meant was that there is a procedure prescribed under the Constitution and the OLDRL for appointments and the Leader did not follow the procedures. That is to say, he did not disclose his interest to the NEC and the Ombudsman Commission in respect of the appointment on 16th December 1998. And he did not allow the Ombudsman Commission to give an appropriate direction under s 27 (4) of the Constitution to correct the misconduct committed earlier. He ultimately proceeded and secured the appointment of his brother in breach of those procedures. When all of these matters are considered, it was open to the Leadership Tribunal to conclude that the appellant defrauded the procedure set out under the Constitution. That is the sense in which the Leadership Tribunal used the word fraud. I do not find any error in this finding.

The final ground of appeal on penalty relied upon by counsel for the appellant alleges that the trial judge erred in law in holding that the argument under Section 37 (15) of the Constitution is not relevant. There is no merit in this ground. Section 37 (15) is applicable to criminal offences and has no application to Leadership Code offences. Even if this section was applicable (which it is not), any such penalty would be reviewed in accordance with the law. I have just considered the applicable principles of law and find no error.

I have concluded that there is no merit in any of the grounds raised by the appellant on penalty. On the contrary, the Leadership Tribunal set out the applicable law on penalty and considered them in detail and applied them with great care.

The Leadership Tribunal applied the applicable law correctly. Section 28 (1) (g) (ii) of the Constitution requires subject to s 28 (1A), a leader found guilty of misconduct in office must be dismissed from office. The Tribunal directed its mind to s 28 (1A) which provides:

"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."

To consider an alternative penalty to dismissal from office, a tribunal must find that (1) there is no serious culpability on the part of the leader and (2) public policy and public good do not require dismissal from office. The Tribunal must be satisfied of the two considerations before an alternative penalty may be considered. It is not enough to be satisfied of only one. I held this view this in Nilkare’s case (supra) at page 36 to 37.

The Leadership Tribunal fully considered these two considerations. At page 79 of Volume 1 of the record, it made reference to s 28 (1A) of the Constitution and at page 81 stated:

"Thus while no charges of nepotism or wantokism had been brought before a Leadership Tribunal till now we have no hesitation in condemning such behaviour as being most serious forms of misconduct. We are totally satisfied that such misconduct that it is in the interest of the public policy and the public good that such misconduct be recognized and dealt with strictly as serious breaches of the Leadership Code."

The Tribunal’s finding on "public policy and public good" has not been challenged on the basis of the Wednesbury Principles nor has it been relied on as a ground on penalty. It is not open for this Court to review this.

The Leadership Tribunal then considered the "serious culpability" of the appellant’s misconduct. It considered the appellant’s actions in two parts; namely, the appointment on 16th December 1998, and the revocation and the re-appointment on 13th January 1999.

In respect of the appointment on the 16th December 1998, the Tribunal stated at page 81 to 82 of the record:

"Taking the allegation 1 cites misconduct in the Leader in that his instructions to the Secretary of Department of Prime Minister to prepare a submission for the NEC nominating Moses Tawa was improper for failure to disclose that the recommendation was for his brother, a recommendation made without any consideration of criteria appropriate for selection of suitable candidates or indeed any other candidates. His putting the submission prepared on his instruction before the NEC, and actively participating in that meeting sponsoring and voting for his brother's appointment brought about his being found guilty of nepotism.

As we have found there was no error – no mistake on the Leader’s part in setting out to hide the sponsorship of his brother behind the difference in their names. His action was a step in a deliberate course of conduct to engineer his brother into a public office."

The Tribunal found serious culpability on the part of the appellant and this finding has not been challenged on appeal on the basis of the Wednesbury Principles and therefore stands.

The Tribunal was not unmindful of the subsequent steps taken by the appellant in respect of the revocation and re-appointment on the 13th January 1999. At page 82 it stated:

"We do not accept the Leader lacked advice or was trying to honestly correct the situation. Had that been the case he need only have followed advice of the Ombudsman Commission – taken the opportunity to follow the system provided by statute in a full and transparent manner. He did not do that. Rather than obtaining the advice that he had himself sought from the Ombudsman Commission he set out on a course of further deception instead"

The Tribunal further amplified this at page 83:

"We are mindful that the Leader had the opportunity to step back from his course of misconduct had he responded to the Ombudsman Commission request for information on 30th December 1998. Any error or mistake made up to this point might have been excused, had he taken an honest course then open to him. But rather than responding frankly to the Ombudsman Commission, he ignored that course. We are satisfied that the Leader sought and indeed succeeded and subverted the procedures of appointment by the pretended constitutional consultation with Permanent Parliamentary Committee on Appointments."

The appellant has not challenged these findings on the basis of the Wednesbury Principles nor has he challenged them as grounds for attacking the penalty. It is not open to this Court to review this.

It is clear from s 27 (4) of the Constitution that the Ombudsman Commission had the responsibility to correct the breach that occurred in respect of the appointment on 16th December 1998. The section provides:

"27.....

(4) The Ombudsman Commission......give directions, either generally or in a particular case, to ensure the attainment of the objects of this section."

The intention of this provision is to enable the Ombudsman Commission to take control of a matter in a particular case and give appropriate direction to correct an apparent breach of the Leadership Code to restore the integrity of the leader and the appointing authority.

When the appellant proceeded to re-appoint his brother in the NEC without the intervention of the Ombudsman Commission, the breach that had occurred earlier had not been effectively dealt with. If the Ombudsman Commission became involved, it might have directed that the leader should not take part in any deliberation or decision of the NEC. This did not happen because the appellant did not give the opportunity to Ombudsman Commission to correct the misconduct.

Viewed in its full context, the Tribunal was entitled to find that this was a serious misconduct. I do not find that this was an absurd finding according to Wednesbury Principles. Nor do I find that the dismissal from office was a penalty no reasonable tribunal could have imposed in the circumstances.

In the result, I would dismiss the whole of the appeal with costs to the Public Prosecutor.

LOS, J: The appellant sought judicial review before the National Court of the decision of the Leadership Tribunal Constituted by Sheehan J and magistrates Ori Karapo and Iova Geita. The tribunal heard a number of charges of misconduct in office laid by the Ombudsman Commission (the commission) against the Appellant, Peter Peipul. The charges related to misconduct in office for nepotism, failure to disclose interest in his associates, supporting appointment of his relative, revocation and reappointment and failure to reveal his interests. The appellant was found guilty and on 5 counts he was recommended for dismissal. The National Court dismissed the review application. The appeal to the Supreme Court is from that decision pursuant to Order 10 of the Supreme Court Rules.

The review application is against finding of guilt and against severity of penalties imposed by the Tribunal. The grounds of review on the finding of guilt were on error of law on the face of the record, want of jurisdiction, unreasonableness and standard of proof. I have gone through allegations, the evidence and the findings and with respect; I do not find any error in any of these in the decision of the review court. However, the totality of the penalties appears to be an excessive.

PENALTY

I do pay heed to various statement of law pronounced by the courts – the National Court and the Supreme Court. These include: an appeal court cannot substitute its own view of what penalty should have been imposed, court cannot substitute a penalty where a penalty was open and in line with the constitution and the Organic Law. With respect I consider that all these pronouncements cannot render the Supreme Court powerless when it is the last court in this jurisdiction having all the discretionary powers as an appeal court under ss 4 and 16 of the Supreme Court Act and Review Court in sections 155(2) and 155(4) of the constitution.

Sentencing process is not a strict mechanical process as it would appear to in section 27(5) of the Organic Law on the Duties and Responsibilities of the Leaders. The relevant part says –

"where a Leadership Tribunal finds a person guilty of misconduct in office it shall recommend to the appropriate authority that that person in question be dismissed from unless alternative penalties can be imposed having regard to the provision of s 28(1A) of the Constitution"

Indeed Her Honour the review judge had formed that view and applied strict letter of the law when she said at page 260 –

"... This when the leaders conduct is taken step by step or in the whole it shows a deliberate flouting of the appointment procedures and leadership duties. The only recommendation of penalties must be dismissal."

Firstly not apparent on the face of the statement is what steps the leader had taken to correct the earlier mistake. Secondly the leader sought to obtain appropriate approvals though late in time. I will have to concede that in the first place he concealed the fact that the appointee under consideration was his blood brother. However finding against a leader in a public forum itself is a punishment because it automatically causes shame and humility which in my opinion must be an appropriate mitigation in a penalty given the leaders background in education and employment. In any punishment there are two aspects to consider personal punishment and deterrence to persons with similar tendencies. It has not been specified which aspect has the overwhelming emphasis. But what was acknowledged was that the Appellants case is the first of its kind. That meant that there was no factor of prevalence of this kind of misconduct known officially. So in either case whether penalty was for deterrence or for personal punishment, it is excessive in my view. I consider therefore with respect the review judge made an error. I would uphold the appeal and quash the penalty of dismissal. Instead under Leadership Code (Alternative Penalties) Act 1976. I impose K1, 000 on each of the count in which the leader was found guilty. Altogether the leader shall pay a penalty of K5, 000.

INJIA J: The judgments of the Chief Justice, the Deputy Chief Justice and Justice Sawong extensively set out the circumstances pertaining to this appeal, the grounds of appeal and the arguments made by counsel on behalf of the respective parties on the issues of guilt and penalty and I adopt them. I wish to address the issue of guilt and penalty separately.

APPEAL AGAINST FINDINGS OF GUILT

I agree with the Chief Justice, Deputy Chief Justice, Justice Los and Justice Sawong that the appeal against the National Court’s decision upholding the Leadership tribunal’s findings of guilt on all five charges are without merit and they should be dismissed for the reasons given by their Honours.

APPEAL AGAINST PENALTY

In relation to appeal against penalty of dismissal on all 5 allegations of misconduct I take a view which is similar to those of the Chief Justice and Justice Los but different to the Deputy Chief Justice and Justice Sawong. In this appeal, in ground No. 4 of the Notice of Motion, the appellant sufficiently raises the ground of excessiveness of the penalty recommended. The appellant’s main contention is that an alternative penalty other than dismissal provided by law was warranted in the circumstances of his case. He contends that the National Court erred in upholding the decision of the tribunal. He then invited this Court to quash the penalty in respect of each charge and recommend some other penalty prescribed under s.2 of the Leadership Code (Alternative Penalties Act (hereinafter referred to as the "Alternative Penalties Act.") The respondent contends that the penalty of dismissal was the appropriate punishment for each charge, that the National Court made no error in upholding the decision of the tribunal and that this Court should not interfere with that decision.

The relevant constitutional provisions relating to penalty are as follows:

Section 28(g) of the Constitution, provides:

"(g) (An organic Law shall) shall establish independent tribunals that-

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

(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."

Section 28(1A) of the Constitution, provides:

"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."

Section 27(5) of the OLDRL, provides:

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.

Section 2 of the Leadership Code (Alternative Penalties) provides:

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.

It is clear to me from the wording of Constitution s. 28(1) (A) that it is really a question of degree as to whether or not the breach of duty which constitutes the misconduct is so serious in terms of "culpability", and contrary to "public policy" and the "public good" that the ultimate penalty of dismissal is warranted or some other lesser penalty presided by the Penalties Act is warranted.

I accept the majority view in The application of John Mua Nilkare SC536 (1997) that this Court has the inherent discretionary power under s.155 (4) of the Constitution to review a penalty recommended by the Leadership Tribunal and where appropriate, quash the penalty and substitute it with any other penalty prescribed by the Alternative Penalties Act. Before the discretionary power can be exercised in favour of an appellant, he must show that the tribunal committed some serious error in the exercise of its discretion on penalty. For instance if the penalty is grossly excessive or disproportionate to the totality of the circumstances having proper regard to nature of the duty, the circumstances of the misconduct and the personal antecedents of the leader which aggravate or mitigate the penalty, then the court may infer that a serious error occurred and quash the penalty and substitute it with another penalty which the court considers appropriate.

In the present case, the tribunal expressed the aggregate totality of the breaches warranting dismissal on each count as follows:

"In Papua New Guinea the helping of wantoks of the same region, clan or family in need is an honoured tradition of Melanesian society but whether criminal or not, wantokism or nepotism when favouring friends or associates in breach of statutory and or leadership duty are directly contrary to the National Goals and Directive Principles set out in the Constitution – and engineering appointments to public office in denial of statutory procedure constitutes a fraud on the people of Papua New Guinea.

Thus while no charges of nepotism or wantokism had been brought before a Leadership Tribunal till now we have no hesitation in condemning such behaviour as most being most serious forms of misconduct. We are totally satisfied that it is in the interest of the public policy and the public good that such misconduct be recognised and dealt with strictly as serious breaches of the Leadership Code."

I agree with the tribunal and the National Court that the deliberate flouting of appointment procedures for the appointment of a public officer prescribed by law is a serious thing and that it must be dealt with strictly. I also agree with the tribunal that the National Goals and Directive Principle enshrined in the Constitution is a relevant guiding principle in determining public policy and the public good. And I also agree with the tribunal that to secure the appointment of a "wantok" to a public position by practicing "wantokism" or "nepotism" is not in the interest of pubic policy and the public good and it should be condemned. However in determining the degree of seriousness of the "culpability" of the appellant, and the contravention of public policy and public the good, I wish to make a number of general observations in addition to those stated by the Chief Justice and Justice Los, which in my view reduces quite significantly the degree of seriousness of the appellant’s total misconduct.

First, it is fair to say that all the five charges relate to acts committed in the course of prosecuting a single purpose, and that is to secure the appointment of his blood brother to the position of Public Services Commissioner. In the prosecution of this purpose, different breaches of the duties provided under s.27 of the Constitution, and s.6 and s. 15 of the OLDR occurred. It is fair to say that the prosecution of a single purpose through multiple breaches of duties is less serious than breaches of distinct duties for different purposes. In the former situation, principles of fairness and equity require that the seriousness of the leader’s entire conduct be seen in their totality. The appellant’s case falls into this category. It is quite different to and not as serious as other misconduct cases where a leader is found guilty on unrelated multiple counts of misconduct, eg. unrelated multiple charges of misconduct relating to misuse of public funds.

Secondly, the nature of the various duties imposed under s.27 of the Constitution are couched in very broad and general terms: Application by John Mua Nilkare SC536 (1997). Although the duties under s.27 (1) and (2) are expressed disjunctively, an act complained of as constituting a breach of duty under one of the duties enumerated in s.27 (1) the same act may as well constitute a breach of other duties enumerated in s.27(1) and s. 27(2). In a case such as the present where a series of acts perpetrated in the course of prosecuting a single purpose are relied on to constitute misconduct under s.27 (1), 27(2) and 27(5) (b); the leader should be given the benefit on penalty arising from any overlapping of charges arising from the same circumstances. The tribunal must ensure that charges of misconduct are not unnecessarily multiplied in order to unfairly paint a picture of serious culpability.

In my view, counts 1 & 4 are the main charges. Even though the trial different duties set out in s. 27(1) are enumerated disjunctively, the Tribunal was presented with allegations of breach of all the duties under s.27 (1) and (2) and so determined. When only one or two breaches of duty in those provisions would have sufficed.

Thirdly, the term "interest," used in s.6 of the OLDRL, and "beneficial interest" used in s.15(5) of the OLDRL s.15(5) and "personal gain" used in s.27(2) of the Constitution must have a legal meaning. I accept Mr. Cannings’ submission that provisions of the Constitution are intended to be read fairly, and liberally as required by Schedule 1.5 of the Constitution and when read liberally, it is not restricted to "financial interest". Whilst that may be so, they must mean something more than their ordinary meaning where some kind of special interest which is capable of producing some tangible form of economic benefit, be it for material or financial. For if every person with an abstract interest arising from any social or political association were to be included in a broad liberal definition, then it would be an absurdity if every kind relationship between a leader and members of his constituency and his political and social affiliates in which the leader has an interest in becomes liable to prosecutions under the Leadership Code. This is undesirable in a free and participatory political democracy such as ours.

In my view, the interpretation impressed upon us by Mr. Jerawai to these words "interest", "beneficial interest" or "personal gain" is the acceptable definition. It must be some direct or indirect material or financial interest and not some merely social or political interest.

In the present case, when I asked Mr. Canning’s during argument whether the respondent would object Mr. Peipul participated in the appointment of one of his electors in his electorate, in whose electoral vote Mr. Peipul would have a direct beneficial interest, Mr. Cannings struggled to provide a suitable answer except to say that it is a question of degree. Likewise, Mr. Peipul would have a direct beneficial interest in Mr. Tawa’s electoral vote. The interest in both cases is purely social and political. But what makes Mr. Tawa’s situation different is that he is the blood brother of Mr. Peipul and to some extent, a relationship which according to the customs of many ethnic societies in Papua New Guinea is a reason for generating and sharing economic benefits amongst members of the nuclear family.

In that sense, I accept that Mr. Peipul had an indirect beneficial interest in the appointment of his blood brother because he stood to gain, directly or indirectly, materially and financially. 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 is made out to be by the respondent.

Fourthly, democratic governments in free participatory political democracies around the world are built on the strength derived from people of all walks of life bonded by common political and social ideologies and relationships built around those ideologies. In reality, therefore a political leader cannot completely divorce himself from those political, social ideologies and political relationships.

The type of democratic society and government that the Constitution envisages, unlike many other democracies, is one built on respect for and effect to be given to traditional customs and values passed down from generations, which are valuable and useful for national-building. As Goal No. 5(3) of the National Goals and Directive Principles in the Constitution provides:

"5. Papua New Guinean ways

We declare our fifth goal to be to achieve development primarily through the use of Papua New Guinean forms of social, political and economic organization.

WE ACCORDINGLY CALL FOR -

(3) recognition that the cultural, commercial and ethnic diversity of our people is a positive strength, and for the fostering of a respect for, and appreciation of, traditional ways of life and culture, including language, in all their richness and variety, as well as for a willingness to apply these ways dynamically and creatively for the tasks of development."

The term "wantokism" or "wantok system" as is often known is a traditional form of social and political organization and in some cases even economic organization, which has existed from time immemorial in all ethic societies in this country. It has its many advantages and disadvantages. In my view, Goal 5(3) calls on all leaders involved in the institutions of government to respect the "wantok system" in all its richness and value and to utilize its advantages for modern nation building. "Wantokism" has been often used in traditional societies to build lasting relationships in order to impart services generously without expectation of reward, which is one of the many good attributes of "wantokism". Unfortunately in modern PNG, the term has been misused and abused by many people and condemned as an "entrenched evil" in our society which must be completely eliminated. But if "wantokism’s" valuable attributes are accepted, then they may be useful to forming viable socio-political organizations that may be useful in modern PNG as mandated by the National Goals and Directive Principles. And so if a leader endeavours to embrace "wantokism" in his decisions, and in the course of which he contravenes the law, then it is unfair on the leader for the tribunal to completely condemn his actions as having acted contrary to public policy and the public good and a fraud on the people of Papua New Guinea.

Fifthly, the position of the leader as the decision-maker must be understood properly. In relation to s.27, where the leader concerned is the sole and ultimate decision-maker, then the degree of culpability is higher than if the ultimate power rests with someone else or another collective body.

For instance, in this case, the NEC is the collective body, which was the sole authority responsible for making the ultimate decision and not the appellant. The appellant like any other Minister in cabinet would have competed with other members of cabinet to advance the case of a candidate for the job of his choice. The fact that Mr. Tawa’s appointment was revoked and then re-appointed and has been allowed to serve his full term in office by successive executive governments in the face of strong opposition from the Ombudsman Commission, shows that the NEC collectively made a deliberate choice of Mr. Tawa for the position on his own merits. It can also be inferred that the NEC decision was made in the interest of public policy, the public good and good governance.

Sixthly, in understanding the degree of culpability, in relation to the duties imposed by s.27 (1), (2), 5(d), OLDRL 7(1), (2), and s.15 (5), it is imperative that the tribunal have sufficient regard to any self-correcting actions taken by the leader to correct the breach he has committed, either upon request by relevant authorities to which he is accountable to or of his own motion. It would be intolerable in democratic societies if every mistake, wrong or indiscretions committed by political leaders were visited with prosecution and the most severe form of punishment imposed without any or sufficient regard to corrective measures taken by the leader to correct the wrong.

In the present case, it is not as if the appellant blatantly ignored the procedural requirements and when the breaches were pointed out by the Ombudsman Commission, he completely ignored any request to remedy the breach. He did get the NEC to revoke his brother’s appointment once the Ombudsman Commission raised the issue, that he made efforts to co-operate with the Ombudsman Commission to correct the wrong and that he fully disclosed his relationship with Mr Tawa to the NEC when it considered Mr Tawa’s revocation and re-appointment.

Finally, the tribunal or the court must give due regard and weight to the personal antecedent circumstances of the leader which mitigate or aggravate the penalty. In the present case, the appellant had an outstanding education and career in government service which spread for some 26 years, and had an unblemished character. Although the tribunal made mention of this, these factors were not given sufficient consideration and weight.

In all the circumstances of the present case, when I view the totality of the circumstances and the alleged breach of duty, I am of the view that the degree of culpability is far lesser than many other leaders who have committed breaches and who have been found guilty and dismissed before the appellant. I am also of the view that the contravention of public policy and the public good were not of the severest form to warrant dismissal. It is clear to me that these factors were not considered or sufficiently considered by either the tribunal or the National Court. This amounts to a gross error on the part of the tribunal which led to the recommendation of the ultimate penalty of dismissal. The National Court in simply endorsing the position taken by the tribunal also fell into error. For these reasons, I would quash the penalty of dismissal on each count.

The question then is what other penalty under s. 2 of the Penalties Act should be substituted having regard to all the relevant considerations. I consider that the maximum fine of K1, 000.00 for each offence, which brings the total monetary fine to K5, 000.00, is an appropriate punitive and deterrent punishment for the totality of his conduct. This fine is to be paid within 2 days from today.

SAWONG J: This appeal challenges the decision of the National Court, which dismissed the appellant’s application for judicial review seeking to review the findings and recommendations of a Leadership Tribunal concerning the appellant’s conduct as a leader under the Leadership Code.

BACKGROUND:

The appellant is a former member of the National Parliament. He was the Minister for the Public Service in a previous Government. In both cases he was a "leader" and thus subject to the Organic Law on the Duties and Responsibilities of Leadership.

The Tribunal was constituted to hear and determine five allegations that the appellant in his capacity as Minister for Public Service was guilty of misconduct in office.

Between 26th February and 5th April, 2001 the Tribunal enquired into the allegations of misconduct. On 10th April, 2001 the Tribunal delivered its findings on the five (5) charges. The appellant was found guilty on all five charges.

On 19th April 2001, the Tribunal delivered its recommendations on penalty on each of the five charges. The Tribunal recommended a penalty of dismissal from office on all five (5) charges.

On 27th April 2001, the appellant filed a judicial review application in the National Court seeking leave to review the Tribunal’s findings and recommendations.

On 21st May 2001, the Head of State dismissed the appellant from office as member of the Parliament and as member of the Imbongu Open Electorate.

On 16th May 2001, the appellant applied for leave for judicial review in the National Court before Mr Justice Kandakasi. On 15th May 2001, Justice Kandakasi handed down his decision refusing leave. Subsequently, the appellant appealed to the Supreme Court challenging that refusal. The Supreme Court upheld the appeal and granted leave to the appellant to review the Tribunal’s findings and recommendations on penalty. The Supreme Court then referred the substantive review back to the National Court.

On 4th March 2001, the substantive judicial review application was argued before her Honour Justice Davani. Her Honour dismissed the judicial review application. The present appeal is against that decision.

It is necessary to set out in summary, a brief facts which formed the basis of the charges.

On 3rd December 1998 when he first assumed office, as Minister for Public Service there existed a vacancy for Commissioner on the Public Services Commission. Upon his appointment, he became Minister responsible for the Administration of the Public Services (Management) Act and the Public Services Commission. The need for a substantive appointment to the Public Services Commission was drawn to his attention by the Departmental Secretary and the previous Chairman of the Public Services Commission. The process leading to the appointment of Moses Ipu Tawa as Commissioner commenced from about this time.

On 9th December 1998, the appellant instructed the Secretary of the Department to prepare a submission to the NEC. That instruction was in the form of a hand written note by the appellant on a curriculum vitae of Mr Moses Ipu Tawa.

On 10th December 1998, Mr Tawa’s CV together with those of other two candidates were annexed to a NEC submission. The submission was signed by the appellant who recommended the appointment of Mr Tawa as Public Services Commissioner. The submission did not disclose that Mr Moses Ipu Tawa was the appellant’s younger brother. The submission also did not disclose that the Constitutional requirement of consultation with the Permanent Parliamentary Committee on Appointments had been undertaken.

On the 16th December 1998, the appellant attended and took part in the NEC meeting of that day. In that meeting he sponsored the appointment of Mr Tawa and voted on that occasion. His submission and recommendation that Moses Ipu Tawa be appointed was approved by the NEC. On that date he did not disclose to the NEC, the Ombudsman Commission, the Parliament and other authorities of his interest namely, that Mr Tawa was his younger brother.

On 17th December 1998, the NEC proceeded to advise the Governor General to appoint Mr Tawa as a Public Service Commissioner. That advise the Governor General stated that it was advise given following the required consultation with the Permanent Parliamentary Committee on Appointments. That appointment was gazetted on 24th December, 1998.

Following the appointment adverse comments were made by Public Servants and others. The then, Departmental Secretary, Mr Kua learned of the non-disclosure from the officers within the Public Service and advised the appellant that there had to be disclosure of the latest family relationship to the NEC together with proper consultation with the appointment committee.

By a letter dated 29th December 1998, the appellant notified the Ombudsman Commission of the appointment of his younger brother as a Public Service Commissioner. In his letter he said, inter alia that he was notifying the Commission pursuant to s. 6 the Organic Law and that he had made the appointment in good faith. He also advised the Commission that while presenting his submission to appoint to the NEC he had declared his interest prior to the decision being taken, that is, he had notified the NEC that Mr Tawa was his brother.

On 30th December 1998, the Ombudsman Commission wrote to the appellant asking him to provide all relevant documents relating to the appointment. It sought further specific information of the process of the appointment and advised the appellant to furnish that specific information by 5th January, 1999. The leader did not reply to the Commission’s letter.

The Commission then wrote to him on the 8th January and 3rd of February, 1999. The appellant did not respond till 8th February, 1999 when a partial reply was made but not one provide information on how Mr Tawa came to be selected as the leader’s candidate. It also did not advise that in the interim, Mr Tawa’s appointment had been revoked and renewed by a further submission to the NEC.

In the interim, on the 4th January 1999, the appellant signed a further submission to the NEC advising that the appointment of Mr Tawa on 16th December 1998, could not be implemented because it had been made without the Constitutional required consultation with the Permanent Parliamentary Committee on Appointments. It recommended the re-consideration of the appointment of Mr Tawa from a list of suitable candidates. The submission continued with advice that the required consultation with the Permanent Parliamentary Committee on Appointments had been undertaken in respect of each of the three (3) candidates. It also advised that Mr Tawa was his blood brother which relationship had already been made known to the Prime Minister. The submission concluded with the recommendation that the Head of State be advised to make an appointment from the list of candidates.

The purported consultation with the Permanent Parliamentary Committee on Appointments contained in the submission had not in fact then taken place. It was not undertaken until the next day, namely, the 5th January 1999, when the leader wrote to the Chairman of that Committee and delivered a letter written by the appellant to be signed by the Chairman. The Chairman of the Permanent Parliamentary Committee on Appointments acknowledged that the appellant saw him on the 5th January 1999, and that he had signed a letter prepared for and presented to him by the appellant.

The submission of the 4th January recommending the revocation and reappointment of Mr Tawa was presented by the appellant to the NEC on 13th January, 1999. At that meeting the appellant did notify the meeting that the recommended candidate was his brother. The submission was approved by the NEC and the Governor General was advised accordingly. The appointment by the Governor General was subsequently gazetted. The gazetted notice recited that there had been compliance with the Constitutional requirement for consultation.

THE CHARGES:

The appellant was charged on five (5) counts of misconduct in office. The five (5) charges were brought pursuant s. 27 (1), s. 27 (2), s.. 27 (5) (b) of the Constitution, s. 6 (1), s. 6 (2) and s. 15 (5) of the OLDRL respectively.

The five (5) charges were as follows:

CHARGE 1: It was alleged that the appellant allowed his integrity to be called into question by making an improper submission to the NEC which did not disclose the fact that the person whose appointment he was promoting was his brother, participating in the NEC meeting and engaging in nepotism. The charge was about to pursuant to s. 27 (1), s. 27 (2) and s. 27 (5) (b).

CHARGE 2: Here it was alleged that the appellant failed to reveal or disclose to the Ombudsman Commission and appropriate authorities the nature and extent of the interest of an associate in a matter with which he had to deal in is official capacity; and dealing with that matter without good faith etc. This was brought pursuant to s. 6 (1) and s. 6 (2) of OLDRL.

CHARGE 3: Here it was alleged that the appellant had failed to make a disclosure of his indirect beneficial interest in a matter he proposed to speak and vote on at a meeting of the NEC on the 16th December, 1998. The charge was brought under s. 15 (5) of OLDRL.

CHARGE 4: Here it was alleged that the appellant allowed his integrity be called into question etc. by not complying with a request of the Ombudsman Commission and proceeding to improperly arrange the revocation of the appointment of his brother and his brother’s immediate reappointment, in particular by violating the consultation requirements of the Constitution and improperly participating in a meeting of the NEC that decided on his brother’s reappointment and engaging in nepotism. The charges here was brought pursuant to s. 27 (1), s. 27 (2) and s. 27 (5) (b).

CHARGE 5: Relates to the failure by the appellant to reveal to the Ombudsman Commission and the Parliament the nature and extent of the interest of an associate in a matter with which he had to deal with in his official capacity and dealing with that matter without good faith etc. This charge was laid pursuant to s. 6 (1) and s. 6 (2) of the OLDRL.

THE LAW:

It is necessary to set out in full the relevant Constitutional and Organic Law provisions under consideration in this case.

Section 27 of the Constitution reads:

"1. A person to whom this Division applies has a duty to conduct himself in such a way, both in his public or official life and his private life, and in his associations with other persons, as not –

(a) to place himself in a position in which he has or could have a conflict of interests or might be comprised 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 this section; and

(b) if necessary, to publicly disassociate himself from any activity or enterprise of any of his associates, or of a person referred to in paragraph (a), that might be expected to give rise to such doubt.

(4) The Ombudsman Commission or other authority prescribed for the purpose under Section 28 (further provisions) may, subject to this Division and to any Organic Law made for the purposes of this Division, give directions, either generally or in a particular case, to ensure the attainment of the objects of this section.

(5) A person to whom this Division applies who –

(a) is convicted of an offence in respect of his office or position or in relation to the performance of his functions or duties; or

(b) fails to comply with a direction under Subsection (4) or otherwise fails to carry out the obligations imposed by Subsections (1), (2) and (3),

is guilty of misconduct in office."

Section 6 of the Organic Law reads:

"1. A person to whom this Law applies who fails to reveal to the Ombudsman Commission and the appropriate authority the nature and extent of his interest or the interest of an associate, in a matter with which he has to deal in his official capacity is guilty of misconduct in office.

2. A person to whom this Law applies –
   
   • (a) who, or an associate of whom, has an interest in a mater which he has to deal with in an official capacity; and
     
   • (b) who does deal with that matter (whether by voting on a question concerning it or otherwise),
     

is, subject to Subsection (3), guilty of misconduct in office.

3. Subsection (2) does not apply if the person concerned dealt in good faith with the matter-
   
   • (a) under compulsion of law; or
     
   • (b) in case of urgent necessity, if he –
     
     • (i) has revealed his interest in accordance with Subsection (1); or
       

(ii) does so reveal his action as soon as practicable; or

(c) after he has revealed his interest in accordance with Subsection (1) and under authorization by the appropriate authority.

4. In this section, "the appropriate authority" means –
   
   • (a) in relation to the Prime Minister and each Minister – the National Executive Council; and
     
   • (b) in relation to each member of the Parliament (including the Prime Minister, a Minister, the Leader of the Opposition and the Deputy Leader of the Opposition)-the Parliament; and
     
   • (c) in relation to the head of each provincial executive – the Provincial Assembly; and
     
   • (d) in relation to each other person specified in Section 26 (application of Division 2) of the Constitution - the authority responsible for the appointment to office of that person."
     

Section 15 (5) of the Organic Law reads:

"1. A member of a legislative or executive body who proposes to speak or vote on any matter before the body or a committee of the body, and who has a direct or indirect beneficial interest in the matter, shall first disclose to the body or the committee the nature of his interest in the matter.

2. If so requested by any other member of the body with the leave of the person presiding, the member shall give reasonable particulars of his interest in clarification or expansion of his disclosure.
   
3. A disclosure under Subsection (1) shall be recorded in the minutes of proceedings of the body or of the committee of the body, as the case may be, and after the disclosure, the member -
   
   • (a) shall not take part in any deliberation or decision of the body, unless the body otherwise resolves; and
     
   • (b) shall be disregarded for the purposes of constituting a quorum of the body for any such deliberation or decision; and
     
   • (c) may, by resolution of the body, be excluded from the meeting.
     

4. Where -

(a) after a member has made a disclosure under this Law any information comes to is knowledge that leads him to believe or suspect, or ought reasonably to make him believe or suspect, that the disclosure was inadequate or incorrect; or

(b) any information comes to the knowledge of a member which, if known earlier, would have obliged him to make a disclosure to the body of which he is a member, he shall –

• (i) immediately inform the Speaker, Governor, Chairman or other person who normally presides at meetings of the body; and
  

(ii) disclose the information to the first meeting of the body after the information comes to his knowledge.

(5) A person to whom this Law applies who fails to make a disclosure as required by this section is guilty of misconduct in office."

THE APPEAL:

The appellant filed this appeal by way of a Notice of Motion pursuant to O. 10 of the Supreme Court Rules. The appellant is seeking to:

1. Set aside the National Court decision of Justice Davani made on 15th arch, 2002; and
   
2. Bring up the findings and recommendations of the Leadership Tribunal made on the 10th April and 19th April, 2001 respectively and;
   

(a) Quash the Tribunal’s findings of guilt against the Appellant on all five (5) counts; or

(b) In the alternative quash the penalty of dismissal imposed on the Appellant on all the five (5) counts and substitute with less penalties as provided by the Leadership Code (Alternative Penalty) Act 1976.

GROUNDS OF APPEAL:

The appellant in his Notice of Motion sets out five (5) grounds of appeal. These are:

1. Error of Law on the face of the record; and
2. Want of jurisdiction; and
3. Unreasonableness under the Wednesbury Principles; and
4. Severity of penalty; and
5. Threshold issues.
   

The appeal arises from a National Court decision which reviewed a Leadership Tribunal decision. The judicial review jurisdiction of National Court under O.16 of the National Court Rules are well settled in this jurisdiction. The review jurisdiction of the National Court under O.16 of the National Court Rules is not to examine the reasoning of the subordinate authority with a view to substituting it with the Court’s own decision but it is concerned with the decision making process and not the decision itself. See Kekedo v Burns Philp Limited.

In the National Court, the appellant asked that Court to review the Tribunal’s findings and recommendations because the appellant felt that the Tribunal made an error of law; acted in access of jurisdiction, made a decision which no reasonable person or Tribunal could have reached and imposed a penalty which no reasonable person or Tribunal could have imposed.

The National Court reviewed the Tribunal’s findings and recommendations and found that the Tribunal’s findings and recommendations did not contravene any legal principles. The trial judge therefore dismissed the application for review.

I now consider each of the grounds of the present appeal.

GROUND 1:

ERROR OF LAW ON THE FACE OF THE RECORD.

There are two principle grounds raised here. The first is in respect of the first and fourth charges of the misconduct which relates to charges 1 and 4. These two charges were brought under s. 27 (1) (a), s. 27 (1) (b), s. 27 (1) (c), s. 27 (1) (d), s. 27 (2) and s. 27 (5) (b) of the Constitution.

It was submitted by counsel for the appellant that there was an error of law on the face of the record in that the charges were not framed as to demonstrate which of the provisions were alleged to have been breached by the appellant which amounted to misconduct in office. It was submitted that the two charges as framed, were framed in such a way that based on the factual allegations contained in those two charges, the appellant could be held liable for his misconduct against any one of the duties imposed by s. 27 (1). It was submitted that without the specific duty being alleged to have been breached, the appellant was faced with charges in the most general terms, where on the appellant was entitled to have all the other members of the charges under s. 27 as a whole proved beyond doubt to establish his guilt. This included the element of "personal gain", "transaction" or "enterprise" under s. 27 (2) of the Constitution.

Mr Jerewai submitted that there was no evidence of "personal gain" or "transaction" or "enterprise" from which the appellant could enjoy personal gain. He submitted that this was an essential element to be proved along with other elements given that the 1st and 4th charges are in the most general terms. It was submitted that in such a situation the Tribunal ought to have given the provisions of s. 27 of the Constitution particularly Subsections 1, 2 and 5 (b) a liberal interpretation and have them read as a whole. He submitted that if the Tribunal had done that, the result could have been that in the absence of any evidence of "personal gain" or "transaction" or "enterprise" these charges could not be sustained.

It was further submitted that the construction and/or interpretation of s. 27 of the Constitution of the Tribunal when dealing with the appellant was erroneous. It was submitted that s. 27 (1) of the Constitution sets out in general terms the integrity and respect of the public office and status that a leader must preserve. It was submitted that, that Subsection is not self-executing and that Subsection (1) must be read together with Subsection 2 which is the executory provision. As I understood his submissions, Mr Jerewai submitted that properly construed Subsection 2 renders that when engaging any activity by way of "transaction" or "enterprise" which is for "personal gain" will attract a duty under Subsection 1. In the absence of such engagement of "personal gain" a leader cannot attract a duty under Subsection 1.

As I understand Mr Jerewai’s submissions, he submits that the trial judge erred in holding that the Tribunal properly interpreted and applied s.27 (1) (a), s.27 (1) (b), s.27 (1) (c), s.27 (1) (d); s.27 (2) and s.27 (5) (b) of the Constitution.

The appellant argues that s.27 (1) of the Constitution sets out the general terms of duties and responsibilities of leadership but does not create an offence on its own. He further argues that Subsection 2 and 3 are executory provisions which if breached would establish an offence under s.27 (5) (b). The appellant seems to suggest that s.27 (1) and (2) are to be read together to create offences. The appellant’s complaint is not that his charge was effective in that the charge did not refer to the correct section number.

The Respondents submit that the submissions made by the appellant are not correct interpretations of s. 27 (1), s. 27 (2) and s. 27 (5) (b). It was submitted that if a leader’s conduct is not in line with any of the duties set out in s.27 (1) (a), (b), (c) and (d) then he is in breach of s.27 (5) (b).

It was further submitted that s.27 (2) creates an offence on its own if the leader’s conduct is not in line with the duties and responsibilities set out in s.27 (1) (a), (b), (c) and (d) and if such conduct is by the use of his office to make a personal gain or to enter into any transaction or enterprise or activity that might be expected to rise to doubt in the public mind.

The Respondents submit that the trial judge did not make any errors in her reasons. It was submitted that no errors of law have been demonstrated in her Honour’s construction of s.27. Counsel for the Public Prosecutor submitted that the gloss the appellant attempts to put on s.27 is nonsensical and is not born out by a literal reading of s.27. It was submitted that it was not necessary that personal gain be proven for a leader to commit misconduct in office under s.27 (5) (b). A Leader who fails to carry out any of the obligations imposed by Subsections 1, 2, and 3 will commit misconduct in office. That, it was submitted, is the effect of the clear literal meaning of s.27 (5) (b).

It was submitted further that s.27 (2) refers to a leader using his office for personal gain or for entering into a transaction or engaging in an enterprise etc. A leader who does any of these things will commit misconduct in office. It was submitted that in the present case the Public Prosecutor had alleged that a leader had engaged in an activity that might be expected to give rise to doubt in the public mind as to whether he was carrying out his duty under s.27 (1).

Mr Cannings pointed out that the Constitution must be given a fair and liberal interpretation. It would defeat the purpose of the Leadership Code to require a Tribunal to find that there was personal gain in every allegation of misconduct. Furthermore, personal gain is an unqualified term. The Leadership Code is intended to cover a broad range of misconduct. Leaders are required to follow proper important procedures. He submitted in the end that there had been no errors of law apparent in the trial judge’s decision.

The appellant argues that there was no "personal gain" or "transaction" or "enterprise" on his part. The Respondents submit that the submissions on this aspect by the appellant were mis-conceived and that the trial judge had not made any errors in the construction and interpretation. They submit that the construction and interpretation by the trial judge was correct and that no error can be found in her reasoning.

The trial judge addresses this contention at p. 10 and 11 of her judgment. This is what she said:

"I find that the contention that there must be some "personal benefit" or "personal gain" by the plaintiff before he could make out an offence under S. 27 is a very restrictive interpretation indeed and would therefore defeat the entire trust and purpose of S. 27 as well as the whole Leadership Code. Obviously S. 27, is not restricted to "personal gains" only, as it sets out various offences. The argument that there must be a "personal gain" before an offence can be committed under S. 27 is suspicious, misleading and mis-conceived.

The effect of a clear literal interpretation is that a Leader who fails to carry out any of the obligations imposed by Subsections (1), (2) and (3) commits misconduct in office.

It would defeat the purposes of the Leadership Code to require a Tribunal to find that there was personal gain in every allegation of misconduct. Furthermore, personal gain is an unqualified term. The Leadership Code is intended to cover a broad range of misconduct. Leaders are required to follow proper appointment procedures."

And at page 11 of her judgment the trial judge goes on and says:

"In my view, the intent and/or purpose of having the provisions in question was to prevent Leaders from using their position and power for all manner of personal gain howsoever remote that might be. These provisions were made to insure that Leaders do not mis-use their privileges or engage in corrupt practices. They are there to insure that Leaders conduct themselves in a fair and transparent manner. I am of the view also that Parliament made no mistake in not putting any qualification to the phrase "personal gain". This was deliberately done to cover all situations, however slight it might be for the integrity of Public Offices and for good transparent governance. The aim was to protect the country from unscrupulous and unbecoming behaviour by our Leaders".

I consider the appellant’s submissions on the construction of s.27 (1), s.27 (2) and s.27 (5) (b) mis-conceived. Section 27 (1) is a general provision setting out general duties of conduct by leaders. It is drafted in-disjunctively so that each sub paragraph in Subsection 1 creates distinct and separate duties upon a leader. Each duty in s. (1) (a), (b), (c), (d) are separate duties, a breach of anyone of these may amount to misconduct.

Section 27 (2) is a separate and distinct duty imposed upon a leader as opposed to the general duties which are specified in s.27 (1). It is in addition to but separate from those set out s.27 (1).

As I have said earlier, s. 27 (1) is a general provision containing general duties imposed on leaders to conduct themselves properly. That provision is not qualified by the term "personal gain" etc. The term "personal gain" is derived from s. 27 (2) of the Constitution. It is a specific duty imposed upon leaders and it is not intended to be read in conjunction with or together with s. 27 (1).

In my view the appellant has not demonstrated where the trial judge had made any errors of law. As I have said the submissions that have been advanced on behalf of the leader/appellant have been made on a mis-conceived basis. I would therefore dismiss this ground of appeal.

CHARGES 2 AND 5:

These two charges relate to the appellant not disclosing to the Ombudsman Commission, the Parliament and other authorities his relationship with his brother or interest he had in engineering the appointment of his brother to the Public Services Commission.

The appellant concedes that the requirement for disclosure of his interest in the appointment of his brother, Mr Tawa as Commissioner of the Public Services Commission must be made before he dealt with the matter. The appellant conceded that he breached s.6 (1) and s.6 (2) of the OLDRL. However, he submits that, that breach was cured by the revocation made by the NEC and the appointment of Mr Tawa by the NEC on 13th January, 1999. The appellant contends that the trial judge erred in the interpretation of s.6 of the Organic Law. In these grounds the appellant submits that the trial judge erred by not accepting the arguments that the appellant’s action in arranging the revocation of his brother’s appointment "cured" the breached of s.6 of the Organic Law that would otherwise have continued. Thus, it was argued that her Honour wrongly concluded that the Tribunal had made no error in finding the appellant guilty of allegation number 2.

It was further argued that the trial judge had erred by not accepting the argument that the appellants letter of 29th December 1998 amounted to a disclosure of his interest in the matter of his brother’s appointment and thus the trial judge had wrongly concluded that the Tribunal had made no error in finding the applicant guilty of allegation number 5.

The Respondents submitted that the learned trial judge had dealt with each of the issues thoroughly and correctly. They submit that the appellant has not shown or demonstrated any errors of law evident in the trial judge’s construction of s.6. It was submitted by Mr Canning that the trial judge had correctly held that s.6 requires a Leader to disclose his interest before dealing with matter not afterwards.

Mr Cannings has further submitted that the interpretation urged by counsel for the appellant is plainly inconsistent with the way in which S. 6 is meant to operate. He submits that s.6 creates two separate misconduct in office offences. First, it is a misconduct under s.6 (1) not to reveal a person’s interest. Secondly, it is a misconduct under s.6 (2) to deal in a matter without good faith and without compulsion of law or urgent necessity or authorization by the appropriate authority. The only way these two Subsections can work together is to require generally that a leader reveal his interests before dealing with a matter. It would only be if the exceptions in s.6 (3) apply that a leader will be able to reveal the interest afterwards.

I reject the submissions made by the appellant. A plain reading of as s.6 (1) places a positive duty on the leader to reveal to the Ombudsman Commission and the appropriate authority his or his associate’s interest before he deals with the matter in his official capacity. It is misconduct to not to or fail to reveal the nature of such interest to the Ombudsman Commission and the appropriate authority as prescribed by s.6 (1) of the OLDRL.

Section 6 (2) of the OLDRL prescribes that it is misconduct to deal in a matter without good faith or without compulsion of law or urgent necessity or authorization by the appropriate authorities.

In my view reading these two provisions together, it us incumbent and instructive that leaders who wish to deal with any matter involving either their own personal interests or interests of their associates must reveal the nature and extent of the interest to the appropriate authorities before dealing with a matter. The only exceptions are as provided by s. 6 (3) of OLDRL.

In the present case I am not satisfied or convinced by the arguments put forward on behalf of the appellant in respect of these particular provisions. The leader has admitted that he had not complied with the provisions of s.6 (1) and s.6 (2). He has not demonstrated any errors of law made by the trial judge.

His next argument by the appellant was in relation to allegation number 5. This dealt with the alleged misconduct under s.15 (5) of the OLDRL. Here the appellant claims that the trial judge erred by finding that there was evidence that the appellant had a beneficial interest in his brother’s appointment. The argument for the appellant was that, for a charge to be sustained under this provision there must be proof of "beneficial interest" in the appointment. If there is or was "no beneficial interest" in a matter then, the appellant or the leader is not obliged to disclose that interest to the appropriate authority or the Ombudsman Commission. It was submitted that in the present case the fact that the candidate being considered was the leader’s brother was irrelevant in that the leader had no personal beneficial interest.

It was submitted on behalf of the respondents that the trial judge had adequately dealt with this issue and that she had made no errors.

It was further submitted that the trial judge’s conclusion was consistent with the plain meaning of the words in s.15 and the intention of the Leadership Code to require leaders who are members of bodies such as the NEC to disclose their beneficial interests in matters before speaking or voting on them.

It was further submitted that it is an element of the misconduct in office created by s.15 (5) of the Organic Law that a leader has a "direct or indirect beneficial interest" in a matter. It was submitted that in the circumstances of this case there was clear evidence before the Tribunal that the appellant had failed to reveal to the NEC that the person he was recommending be appointed as a member of the Public Service Commission was his blood brother. The Tribunal found that the applicant had an indirect beneficial interest in that matter and he was obliged by s.15 to declare that interest. He did not do so.

It was further submitted that the term "beneficial interest" is not restricted to financial interest.

The trial judge at p. 15 of her judgment said this:

"The plaintiff claims the Tribunal erred in its interpretation of s.15 of the OLDRL in that there was no evidence of "direct or indirect beneficial interests". The Tribunal found there was no evidence of "direct or indirect beneficial interest" in the plaintiff’s appointment of his blood brother to a very senior post in the Public Service. I will dismiss this ground as it fails to disclose an error of law on the face of the record."

I would also dismiss this ground of the appeal. In my view there is no merit in this argument. The evidence was that the appellant was engineering the appointment of his blood brother to a constitutional office. The fact that they are blood brothers meant that the appellant was obliged to reveal that interest that is their family relationship to the NEC and other relevant authorities prescribed by law. In my view the expression "beneficial interest" is not and should not be restricted to financial interest but it should be given a liberal and broader meaning.

In my view the trial judge made no errors of law and the appellant has demonstrated no such errors.

In the end result, I would dismiss the whole of ground number 1 of the Grounds of Appeal.

GROUND 2:

This ground was premised on ground number 1. As ground number 1 has been dismissed this ground must as a consequences also fall.

GROUND 3:

Here the appellant submits that the learned trial judge erred in not finding that the Tribunal had not taken account or little account or weight of the appellant’s letter of the 29th of December, 1998. It was submitted that the trial judge did not deliberate on the unreasonableness of the Tribunal’s action in giving little weight to that correspondence and giving or attaching too much weight to the correspondence of the 30th December, 1998 from the Ombudsman Commission to the leader/appellant.

The respondent submits that the trial judge had adequately dealt with this ground and that she did not erred either in fact or in law.

The trial judge at p. 15 of her judgment said this in respect of this particular issue:

"The Wednesbury unreasonableness principle states that an authority or Tribunal must act as any reasonable person would act and must not be so absurd in his action such that no reasonable person would act in that way.

On perusal of the Tribunal’s decision on verdict, I find that the Tribunal did carefully consider all the evidence before it. In fact I have informed the plaintiff exercise is right not to give evidence hence not to be subjected to cross examination, so he cannot now come to court and say the Tribunal was unreasonable.

The Tribunal did carefully weigh all the evidence before it, aspects of it I have already covered. This ground has no merit and is dismissed."

In my view this ground must also be dismissed. I find that the trial judge had made no errors of either law or fact in her deliberations and reasons. I would dismiss this ground of appeal also.

GROUND 4:

In this ground the appellant who submits that penalty imposed on him in respect of each of the counts taken either individually or together, was severe. It is a ground against the severity of the penalty that had been imposed on the appellant.

Counsel for the appellant concedes that the mere severity of penalty will not attract a review unless there is on the face of the record of the Tribunal or the proceedings in a National Court there is or are errors of law or law and fact when arriving at a decision on penalty.

Mr Jerewai submits that the Tribunal had not given adequate weight and consideration to mitigating factors in favour of the appellant. It was submitted that the Tribunal gave little or no weight at all to the mitigating factors in favour of the appellant such as his long and distinguished, unblemished record of public service for 26 years. It was submitted further that this was the first of misconduct charges for nepotism and that in these circumstances the maximum penalty was severe.

The respondents submit the trial judge had carefully considered the issue of penalty. It was submitted that the learned trial judge made no errors in finding that the Tribunal had made no errors in imposing the penalties as it had done in the way the penalties had been imposed on each of the charges.

The learned trial judge at p. 16 of her decision said this:

"The plaintiff urges me to consider that the Tribunal did not consider all mitigating factors including the fact that the plaintiff had an unblemished record in the public service for 26 years. The plaintiff also asked that in the light of my findings, that this court considers an alternative penalty as provided under s.2 of the Leadership Code (Alternative Penalties) Act.

On the Tribunal’s decision on verdict, I find that it did carefully consider all materials put before it then. I refer to the following:

(i) The Tribunal re brother’s appointment – "his action was a step in a deliberate course of conduct to engineer his brother into a public office." (pg. 6 Re Decision on Verdict).

(ii) Tribunal re brother’s appointment – "rather than obtaining the advise that he had himself sought from the Ombudsman Commission, he set out on a course of further deception instead." (pg. 6 Re Decision on Verdict).

(iii) Tribunal re alternative penalty – ".. satisfied that misconduct shown is of such serious culpability that only a recommendation of dismissal is appropriate". (pg. 6 Re Decision on Verdict).

She then refers to several pages of the Tribunal’s decision and says that reading of the transcript of the proceedings of the Tribunal showed the manner in which decision was reached. And this is what she quoted from the Tribunal’s decision:

"Thus when the leaders conduct is taken step by step or in the whole, it shows a deliberate floating of the appointment procedures and leadership duties. The only recommendation of penalty must be for dismissal."

In my view in order for this court to disturb the decision of the trial judge the appellant must demonstrate that there has been error of law or of law or fact made by the trial judge. The onus is on the appellant to show such an error. Nothing less will suffice. In my view the appellant has demonstrated no such error on the penalties that have been imposed. It was opened to the Tribunal to come to the decisions it did on the penalties.

Whilst I accept that this was a first of this kind, misconduct, I consider the action of the appellant in engineering his brother’s appointment, then having it revoked and then subsequently, having him reappointed calls into question the whole of the appointment process of senior government and constitutional offices.

In general I see nothing wrong in recommending a close relative to any position, but the process of appointment must be transparent and must follow all the requirements of the law. This is particularly so in recommending appointments to Senior Governmental and or Constitutional offices.

It is instructive that Ministers and other appointing authorities must ensure that all appointment procedures required by law must be strictly followed.

The facts of this case show that the appellant set out in deliberate flouting of the Constitutional Law in having his brother appointed. His actions were calculated to obtain one result – that of the appointment of his brother.

In the end result I come to the firm conclusion that the trial judge had made no errors in dismissing this ground.

For those reasons I would dismiss the whole of appeal and confirm the decision of the trial judge.

As a consequence I would also order that the orders of the Chief Justice made on the day of permitting the appellant to nominate must now be discharged.

In the circumstances the appellant must pay the respondent’s costs of this appeal.

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Lawyer for Appellant : Jerewai Lawyers
Lawyer for Respondent : Nonggor & Associates Lawyers
and Ombudsman.