Regina v Musuota [1997] SBHC 9; HC-CRC 041 of 1996 (14 March 1997)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 41 of 1996

REGINA

v

JOHN MUSUOTA

<

BefLUe: LUNGOLE-AWICH, J

Hearing: 28^th - 31^st October 1996 - Judgment: 14th March 1997

Counsel: F Mwanesalua for the Prosecution - A Radclyffe for the Accused

JUDGMENT

LUNGOLE-AWICH, J:

Honourable Mr. John Musuota, the accused in this case was a cabinet minister, at the time of his trial. He was arraigned on an amended information which comprised 5 counts. When each of the counts was being read and explained to accused to plead to, his learned counsel, Mr. Andrew Radclyffe raised objection to the fourth count. That count charged the accused with offence stated in these exact words:

"Acceptance of benefit contrary to Section 14(1)(c) of the Leadership Code (Further Provisions) Act".

The particulars stated:

"John Musuota on 4^th October 1994, in Honiara, being a leader, misconducted himself when he accepted a benefit to writ, the use of hire car registration, No. A2438 from ROBERT GOH through GOH AND PARTNERS, as such benefit was not a memento vi a ceremony or a social occasion attended by the said JOHN MUSUOTA ".

Preliminary Objection

I understood, the objection raised to be based on two arguments which I put in my own words as follows

1. that enactment such as S: 14(1)(c) of the Leadership Code (Further Provisions) Act, which prohibits all gifts whether large or small, such as are common practice especially on occasions such as- Christmas, is unconstitutional because such omnibus prohibition is not reasonably justifiable in a democratic society.

2. that section 14(1)(c) of the Leadership Code (Further Provisions) Act, under which the offence is created, and accused stood charged, was an enactment which was discriminatory against a class of people, namely, leaders and therefore contrary or inconsistent with section 15(1) as read with (4) of the Constitution. As such, section 14(1)(c) of Leadership Code (Further Provisions) Act under which accused has been charged, must be held to be of no effect and the charge in count 4 be struck out

Learned Director of Public Prosecutions, Francis Mwanesalua, opposed the objection and emphatically countered the two arguments.

Although learned counsel's objection is to be regarded as very important because it raised constitutional issues, counsel did not offer assisting authorities such as academic treatises, case laws or the principle of interpretation of statutes applicable . Such assistance is recommended; it is now very rare in this court. I need not remind counsel, especially the experienced ones that when they do not support their submissions with authorities, the court has to do research right from the start, with the inevitable result that judgment is delayed. I am grateful and thankful to the DPP for the case authority he cited. It might be helpful that when a constitutional issue is intended to be raised, the other counsel is advised so that he may look up the relevant authorities and be able to offer appropriate assistance. I reserved ruling on the issue because given the lack of authorities that would assist court in deciding such an important point, I needed more time to ponder over. I took into account that accused did not challenge the validity of the other four counts so he would be tried on them anyway. I now give the ruling.

Mr. Radclyffe referred to section 15(5)(g) of the Constitution in support of his argument that wholesale prohibition of gifts, however small and whether during Christmas, was discriminatory and not reasonably justifiable in a democratic society. He was not correct in that. In fact sub-section (5) supports the contrary. The circumstances given in sub-subsection (a) to (g) of subsection (5) are exceptions to the general rule in section 15(1) which provides generally that a law should not be made that is discriminatory either of itself or in its effect. And subsection (g) in particular, provides the exception applicable to this case. It is an excuse to an apparent discriminatory law against categories of people mentioned therein . I set out sections 15 (1) and 15 (5)(g) here:

15 (1) Subject to the provisions of subsections (5), (6) and (9) of this section, no law shall make any provision that is discriminatory either of itself or in its effect

(5) Subsection (1) of this section shall not apply to any law so far as that law makes provision

(a) to (f)

(g) Whereby persons of any such description as is mentioned in the preceding subsection may be subjected to any disability or restriction or may be accorded any privilege or advantage which, having regard to its nature and to special circumstances pertaining to those persons or to persons of any other such description, is reasonably justifiable in a democratic society. (The underlining is mine).

A leader, such as a cabinet minister is a person who is accorded privilege and advantages because of his position. Taking into account his standing in society, particularly the power he may wield and- the fact that advantage could easily be accorded to a minister by dishonest persons who have interest in matters within the minister's portfolio, it would not be unjust to pass laws that discriminate against a cabinet minister in so far as those laws tend towards curbing excesses of power and discouraging situation that may give rise to favour unfairly or generally discouraging abuse of power and privilege. Special circumstances exist in the case of leaders such as cabinet ministers.

Indeed our law and the Common Law system abounds in discrimination against or in favour of persons who are accorded privilege especially by reason of holding public office or suffering or being placed in disadvantaged position. In most cases the discrimination on account of holding public office is for public good; to enable the person to carry out his public duties better. Even if we were to restrict our consideration to Criminal Law only, examples are many. I need not wander far afield. The offence of corruption is discriminatorily provided for. Under section 86 of the Penal Code, a person employed in the public service may be charged with the offence of official corruption, a more serious degree of offence of corruption punishable with up to seven years' imprisonment. On the other hand, one may be charged under section 367 as in this case, with the less serious degree of the offence of corruption, punishable with only up to two years imprisonment Another example is 'the offence of theft; it is lawful to charge a public servant with theft by servant or agent or to charge a private agent with theft which carry more severe penalties than when a non agent is charged with plain theft.

Looking at the provisions of the Constitution purely from a technical point, I can say confidently that the constitution certainly excluded or did not prohibit discrimination based on holding public office or on being disadvantaged. It would have been a serious oversight. At section 15(1) the general rule against discrimination is stated in these words:

15 - (1) Subject to the provisions of subsections (5), (6) and (9) of this section, no law shall make any provision that is discriminatory either of itself or in its effect.

The operative word is, "discriminatory". The word has, however, been restricted in definition applicable, given in subsection (4) so that different treatment, that is, discriminatory treatment which is not because of race, place of origin, political opinions. colour creed and sex are not prohibited. I set out subsection (4) giving the definition:

(4) In this section, the expression "discriminatory" means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, place of origin, political opinions, colour, creed or sex whereby persons of one description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.

In count No 4, Honourable Musuota is charged not because of his political opinion, rather because he is a leader and a leader who is said to have accepted, or to use the word of the subsection, been afforded the use of a hired car. Leadership is not one of the grounds enumerated in subsection (4), for which different treatment is prohibited discrimination. So count No 4 is not bad for being a charge under a law that is discriminatory and unconstitutional.

What I have said in the above paragraph disposes of counsel's objection, however, I shall add the following.

Mr. Radclyffe stretched the meaning of S:14(1)(c) of the Leadership Code (Further Provisions) Act too far. The section is certainly not meant to cover gifts which are honest personal tokens such as are offered and accepted on occasions or customarily in a particular society. In Solomon Islands there are examples. See the case of Haomae v Bartlett [1989] SILR 35 where court treated certain gift as customary. It is meant to cover dishonest gift, however small in value, although the little value in the gift may negate corrupt intent. The wrong being discouraged there is not based on the high or little monetary value; it is the dishonesty conveyed in the gift. Moreover, the gift or consideration need not be only of monetary value Glanville Williams at Page 884 of his book, Textbook of Criminal Law, Second edition, suggests sexual favour as consideration in corruption. The majority judgment in a Papua New Guinea case of In Reference by Public Prosecutor - the matter of KEDEA URU, [1988-89] 226, is a useful persuasion on the point. The Papua New Guinea tribunal given the power to try Leadership Code cases, found that a leader, chairman of the National Broadcasting Board was not guilty of misconduct in office although he had received rental allowances of K350 per week, totalling K25,000 to which he was not entitled. He was found not guilty because he did not receive the rental allowance dishonestly. The officer had moved into official house and applied to buy it, but it had not yet been offered to him to buy though it seemed certain that the offer would be made to him. He wrote to the authority concerned asking whether he was entitled to rental allowance. The authority authorised the payment of the allowance to him and payment of arrears allowance.

Charges on which Accused was Tried (Multiplicity)

So that brings me to the charges. The court has before it information laying five counts against the accused. The five counts named the offences in these exact words quoted:

"Count 1 Corrupt practice contrary to section 367(a) of the Penal Code

Count 2 Use of office for personal benefit, contrary to section 8(1) of the Leadership Code (Further Provisions) Act

Count 3 Acceptance of bribery, contrary to section 13 of the Leadership Code (Further Provisions) Act.

Count 4 Acceptance of benefit, contrary to section 14 (1) (c) of the Leadership Code (Further Provisions) Act

Count 5 Allowing his integrity to be called in question, contrary to Section 94 (1) (c) of the Constitution as red with subsection 24 (1) of the Leadership Code (Further Provisions) Act".

In each of the particulars of the five counts naming distinctly different offences, the one and the same overt act was stated to be the offence. It was that accused, unlawfully accepted or received the use of a hired car, No A2438 from a Mr. Robert Goh. The differences were only about his position, but it was the same act of receiving the use of the one car No.A2438. The DPP, by charging the one overt act in five different counts is saying that the one act is technically five different offences so accused, by the one act, committed crime five times; he is to be charged for the five times, and if convicted, to be punished five times. That legalism may be attractive to those of us who are trained in Law; what about to an ordinary, but intelligent person, and is it not desirable that however technical an offence may be, it must be put to an accused in a way that he understands the charge against him? Does excessive multiplicity in counts not leave an accused lost in the maze? After all it is the accused's liberty in danger.

I raised the question, with the DPP, as to whether he would insist on proceeding with the multiple counts all based on the one overt act. His response was that the DPP was authorised to decide to charge and prosecute for any charges he chooses. What I had in mind was not to question that constitutional authority of the DDP which must be all too obvious to any lawyer of the Common Law tradition. My inquiry was meant to find out whether the DPP had considered exercising his constitutional discretion to elect to proceed on only one or some of the counts since all the counts were based on one overt act. That is normal practice - see Regina v Riebold and Another [1967] 1 WLR 674 where the prosecutor elected to proceed only on a count of conspiracy and 28 other counts of larceny and obtaining by false pretence remained on the court file not to be proceeded with without leave of court. The 29 counts were based on the same overt acts. Of course the prosecutor, in deciding to have some counts stayed must be careful to consider that should it be necessary to return to seek leave to proceed with the counts stayed, circumstances do not exist in which it may be said that he will be merely seeking a retrial of the whole case. Indeed the prosecution could, on the same overt act charge one key count and one or two as alternative counts. The court, for its part, has to ensure that the multiplicity of counts will not amount to oppression or prejudice to the accused.

The power of the court to control proceedings before it includes ensuring that accused understands the offence he is charged with before he is asked to plead and evidence is led. That necessarily requires court to check for defects such as ambiguity, non disclosure of offence, duplicity, wrong reference to statutes, lack of consent of DPP where required and any other impropriety in the charge before it. A useful list of circumstances in which court may decline to put charge to accused would be something like this:

1. that the court has no jurisdiction to try the offence charged;

2. that a matter in bar such as a plea of autrefois convict or autrefois acquit is confirmed by the court;

3. that a defect in substance such as duplicity, non-disclosure of offence has been confirmed;

4. that a nolle prosequi is entered by the DPP; and

5. that the charge or charges amount to oppression or are prejudicial to the accused.

The judgments of the House of Lords in Connelly v DPP [1964] 48 Cr App R 183 and of Barry J in R v Riebold [1967] 1 WLR 679 explain some of the circumstances. The old rule that any other charge could not be joined in the same indictment with a charge of murder is now discarded. Of course great care must be taken when deciding what amounts to oppression and prejudice. I would say that when there are multiplicity of counts, but counts that are technically accurate and yet the vast number and extent of the particulars may leave the accused lost in the maze, it is wise to order stay of some of the counts and allow one or a few to proceed. The prosecution can always apply for leave to reactivate the counts stayed.

In this case, it appeared to me at arraignment that it was unnecessary to charge the accused, on the one set of overt acts, with more than one offence, namely that of Corrupt Practice under section 367 (a) of the Penal Code, with an alternative count under the Leadership Code (Further Provisions) Act or at most with a second offence, but only one other under that Act. That would seem to satisfy the desire to proceed under the Leadership Code (Further Provisions) Act. It would avoid the false appearance that accused did something wrong five times. Moreover, the offence of misconduct in office under the Leadership Code (Further Provisions) Act is punishable with a maximum sentence less severe than that for corrupt practice, an offence which not only leaders are chargeable with. and accused is already charged with in count No 1. On the other hand, it might sound less overwhelming numerically if counts 3, 4 and 5 were charged in the alternative. What has happened here is like presenting a list said to have names of six people on whereas in fact the five names are surname, first or christian name, nickname, pen name, stage name, and an alias of the one person. I decided to proceed to try the accused on all the 5 counts as main counts because the multiplicity of the counts did not seem to trouble the defence. Counsel for defence did not raise issue of oppression nor did he let the court know that it would cause prejudice in conducting defence.

Facts Admitted and Proved

The important facts admitted or proved are these. The accused, Mr. Musuota was on 25.7.1994, appointed a cabinet minister in Solomon Islands Government. He was responsible for Post and Communication. The government was headed by the then Honourable Prime Minister, Billy Hilly On 29.9.1994 accused resigned from the position and on the same day received and used a hired car No.A2438 arranged and paid for on the instruction of a Mr. Robert Goh. The said Goh had earlier offered $100,000, car and accommodation to Honourable Ezekiel Alebua who was a cabinet minister, if Alebua would resign from his cabinet position. Honourable Alebua honourably refused the offer and did not resign. Billy Hilly, resigned on 31.10.1994 and so his cabinet ceased to be. Accused's name was seen on a list to vote for Honourable Solomon Mamaloni for the position of Prime Minister. On 7.1 1.1994 a new Prime Minister, Solomon Mamaloni was elected by Parliament. On 10.11. 1994 the accused was appointed a cabinet minister responsible for the same portfolio in the new government headed by Solomon Mamaloni. The government headed by Billy Hilly had a policy to discourage export of round logs, a policy which might have not been popular with those in the business. On these facts the prosecution has asked the court to convict the accused for each of the offences in the five counts.

Count No.1; Decision

Count 1: Corrupt Practice: The charge is laid under section 367 of the Penal Code which reads:

367. If

(a) any agent corruptly accepts or obtains, or agrees to accept or attempts to obtain. from any person, for himself or for any other person, any gift or consideration as an inducement or reward for doing or forbearing to do or for having done or forborne to do, any act in relation to his principal's affairs or business or for showing or forbearing to show favour or disfavour to any person in relation to his principal's affairs or business; or

(b)

(c)

he is guilty of a misdemeanour, and shall be liable to imprisonment for two years or to a fine of six hundred dollars.

Section 366, preceding section 367 gives the meaning of the word, consideration, used in section 367, and states that a person who serves under the Crown is to be regarded as agent for the purpose of Part XXXVIII which includes section 367. I set out section 366 here.

366. (1) For the purpose of this Part, the expression "consideration" includes valuable consideration of any kind; the expression "agent" includes any person employed by or acting for another, and the expression "principal" includes an employer.

(2) A person serving under the Crown or under any Town Council or other local government council or other public body and a member of any such council or other public body, is an agent within the meaning of this Part

The full charge is as follows:

"Count 1. Statement of Offence

Corrupt Practice, contrary to section 367 (a) of the Penal Code.

Particulars of Offence

JOHN MUSUOTA, between 1 September 1994 and 3 October 1994, in Honiara, being a person serving under the Crown, corruptly agreed to accept for himself a consideration, to wit, the use of hire case Reg. No.A2438 from ROBERT GOH through GOH AND PARTNERS, as an inducement or reward for forbearing or ceasing to carry on his duties and functions as a Minister, in relation to affairs or business of the Crown".

Accused was an agent of the Crown when he was a cabinet minister and remained so as a member of parliament. I have found that accused accepted the use of a hired car from Goh: was it corruptly accepted, and if so was it a consideration as an inducement or reward for forbearing to do an act in relation to the affairs of his principal, the Crown? That Goh paid for the hire of car A2438 to benefit Musuota during the time he left the cabinet headed by Billy Hilly has been amply proved. That Musuota was afforded that benefit because he had been a minister and resigned, was equally proved. What Goh did is reprehensible and in common parlance, political corruption. Is it corruption in terms of the law in section 367 of the Penal Code which requires that the benefit, in this case, the use of hired car, be a gift or consideration, for Musuota to forbear - omit to do any act in relation to the business of his principal, the Crown? The beneficial use of the hired car was a gift and indeed a consideration. It was the benefit of one side of a dishonest bargain in return for another dishonest side. The English cases of Regina v Braithwaite and Regina v Girdham [1983] 1 WLR 385 reported together, cited by the DPP are very useful guides in deciding what amounts to consideration. Both accused were public employees in England. In the first case the considerations were motor car tyres supplied and fitted free of charge. In the second the considerations were repairs of vehicles of accused and of his wife free of charge. The cases were brought under statute requiring that once gift was received by public officer from someone holding government contract, the gift was presumed corrupt consideration, it was for accused to prove otherwise. In my view, even without such a statutory presumption, proof of the gift being offered as corrupt consideration was accomplished. In this case the evidence shows that the use of the hired car was offered to persuade Musuota and other ministers to resign. It was inducement for them to resign but certainly not to refuse to do a job which was waiting to be done or to do that office work in favour of Goh or any other person. The act that Musuota was to omit to do cannot be said to be an act in relation to the principal's business. Musuota quit completely the business of the Crown, his principal. He was not simply forbearing or omitting to do the principal's business. He terminated the whole relationship between him and his principal; he terminated the whole mandate. He removed himself from the post of a cabinet minister and so from the authority of the Crown, the principal, which relate to duties of a cabinet minister. Section 367 is not meant to cover that situation; it is meant to punish people who are, to use the common expression, "bought" in the performance of their duty so that they show favour in actioning the interest of the person who has offered the benefit, or so that those "bought" avoid taking action correctly, if that action affects adversely the interest of the person who has offered benefit. Suppose a civil servant, an employee of government is approached by a big company, asked to resign from his post and join the company; where he would be paid higher salary and giver a vehicle to use; he resigns and the company lives up to its promise, would he have committed the offence of Corrupt Practice under section 367? Not so. Suppose he was a cabinet minister who resigned to take up a private company job should the answer be different?.

The other aspect of the case is this. There is no proof to exclude the probability that Musuota heard that a minister who would resign and join the new political grouping would be given the benefit of the use of a hired car, and so he resigned. If so, is it illegal for someone who joins a political party knowing that if he abandoned his position elsewhere, the party would offer him the use of a car? If it is illegal, it certainly is not under section 367 of the Penal Code. It is certainly a dishonourable thing to do. What has happened here is deplorable. It is conduct that a righteous politician should be ashamed of. It is, however, not a crime under section 367 of the Penal Code. In some countries that we are used to taking examples from, such disgusting political conducts have been made unlawful in comprehensive acts of parliament specifically dealing with political conducts. I sympathise with the DDP who, knowing that a conduct such as this one is immoral. and because there is no direct legislation about it, tries to bring it within the ambit of laws intended for other concerns. He is doing superb job, but the law at present does not help him. May be that is something for the DPP and the relevant authorities to consider. As far as the charge in count one is laid in 1994 and up to today, the accused cannot be convicted on those facts. He is found not guilty of the offence of Corrupt Practice contrary to section 367 of the Penal Code. and acquitted on Count No. 1.

Count No.2; Decision

Count No 2: Misconduct in Office - Use of office for personal benefit: The particulars of the offence stated that on 14. 10.1994 the accused who was a leader misconducted himself when he accepted the benefit of the use of hired car No.A2438. The charge was laid under section 8(1) of the Leadership Code (Further Provisions) Act, which is this:

8. (1) Any leader who directly or indirectly asks for or accepts, on behalf of himself or any associate of his, any benefit in relation to any action in the course of his official duties (whether such action has already been taken, is continuing or is to be taken in the future) or by reason of his official position, is guilty of misconduct in office:

The section requires that it be proved that the accused accepted the benefit. And must have been in relation to any action in the course of his official duty. In this case the duty of the accused were those in the portfolio of the Minister for Post and Communication. What is the action in the course of his duty of Post and Communication for which he accepted the benefit? Accused accepted the benefit either so that he resigns or upon resigning, and not in relation to action in the course of his official duty. That part of the offence has not been proved. Accused is found not guilty of the offence of Misconduct in Office (Use of Office for Personal Benefit) prohibited under Section 8(1) of the Leadership Code (Further Provisions) Act. He is acquitted on count No 2

Count No.3; Decision

Count No. 3: Misconduct in Office (Acceptance of Bribe): Section 13 of the Leadership Code (Further Provisions) Act under which accused is charged in Count No 3 reads:

13. Any leader who asks for, receives or obtains, or agrees or attempts to receive or obtain any property, benefit or favour of any kind for himself or any other person in consideration of his actions in carrying out his dudes as a leader being influenced in any manner, or on account of having acted as a leader in any manner (whether generally or in a particular case), is guilty of misconduct in office.

To convict the accused, the section requires that there be proof that he was a leader who has received property, benefit or favour so that his action in carrying out his duty is influenced. Mr. Musuota was a minister and is still a member of parliament so he was and is still a leader as defined by section 2 of the Act in reference to section 93 of the Constitution. He received a benefit, also a favour, in the form of the use of the car hired by Mr. Goh. Was the favour a consideration? Yes, it was a dishonest bargain, but was it so that his action in carrying out his duty as a minister is influenced? Not so; it was so that he resigns his post altogether. His duties were things to do within the portfolio of Post and Communication. They were those things he was required to do when he held the position of minister and he could not refuse to do without violating or neglecting his duties. I have already said that resigning is quitting. It is not covered under section 13 of the Leadership Code (Further Provisions) Act. It will be a serious breach of liberty to require that persons do not resign from their position, especially in politics. Of course resigning because of being influenced by gift or benefit as it has been in this case is deplorable, but our law does not make it an offence yet. Accused is found not guilty of the offence of misconduct under section 13 of the Leadership Code (Further Provisions) Act. He is acquitted on count No 3.

Count No.4: Decision

Count No 4: Misconduct in Office (Acceptance of Gift or Benefit) contrary to section 14(1)(c). It was alleged that John Musuota on 4.10.1994 when a leader, accepted a benefit, namely the use of a hired car from Robert Goh, in circumstances not exempted in subsection (2). Section 14(1)(c) prohibiting accepting gifts and benefit states:

14. (1) Any Leader who, or whose spouse or child under eighteen, -

(a)

(b)

(c) accepts any gift or other benefit or advantage, from any person, company, corporation or incorporated association, is guilty of misconduct in office.

(2) Subsection (1) shall not apply to

(a)

(b)

(c) any gift not exceeding fifty dollars in value, or any other minor benefit or advantage, where such gift, benefit or advantage 3s clearly intended to be a memento of a ceremony or social occasion attended by the Leader or where such benefit or advantage falls within accepted standards of hospitality:

Provided that the provisions of this subsection shall not be construed as relieving a Leader from complying with the provisions of section 5 in relation to such loan, franchise or gift.

Was accused a leader? Yes, as defined by section 2 of the Act in reference to section 93 of the Constitution, a cabinet minister and member of parliament is a leader. Accused was both. Did he accept a gift or benefit? Yes, the use of a hired car from Robert Goh. Section 14(1)(c) of the Leadership Code (Further Provisions) Act does not require that the gift or benefit be a consideration for influencing duty, but in my view, it still requires that the leader must be shown to have acted dishonestly though not necessarily in the sense of it being a corrupt consideration, but that it is dishonest because it appears improper or unbecoming of a leader. The section is a penal one so it must be restrictively interpreted by court. I have referred earlier to the case of Kedea Uru, in Papua New Guinea in which the accused was acquitted although he received rent allowances he was not entitled to. He was found not to have received it dishonestly. Although the case was a charge for allowing integrity' to be called in question, the fact at issue was the same as in this case - that the accused received benefit. Dishonesty of course is decided based on the facts and circumstances, such as the value of the gift, the occasion, customary practice and openness. In this case there was dishonesty; there was graft. Accused obtained the benefit because of his status, his political position as minister and indeed as a member of parliament. Those positions are positions of leadership. The prosecution has proved beyond reasonable doubt that accused, when a leader, a member of parliament received the use of a hired car paid for by Mr. Goh, in dishonest circumstances. That is an offence under section 14(1)(c) of the Leadership Code (Further Provisions) Act. I find him guilty of that offence and convict him on count No.4.

Count No. 5: Decision

Count No 5: Allowing Integrity to be Called in Question, contrary to section 94(1)(c) of the Constitution as read with section 24(1 ) of the Leadership Code (Further Provisions) Act. I set out here the sections:

94. (1) A person to whom this Chapter 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)
(b)
(c) to allow his integrity to be called into question; or
(d)

(2) In particular, a person to whom this Chapter 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 the preceding subsection.

(3) It is the further duty of a person to whom this Chapter 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, 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 dudes under this section; and

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

(4) A person to whom this Chapter 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 dudes;

(b) fails to carry out the obligations imposed by the preceding subsections of this section; or

(c) commits any act or omission prescribed under section 95 of this Constitution is guilty of misconduct in office,

is guilty of misconduct in office.

The exact words of the charge in count No. 5 are these:

"Count 5: Statement of Offence

Allowing his integrity to be called in question, contrary to section 94(1) (c) of the Constitution as read with section 24(1) of the Leadership Code (Further Provisions) Act.

Particulars of Offense

JOHN MUSUOTA, between 4 October 1994 and 11 November 1994, in Honiara, being a member of parliament and person to whom section 93 of the constitution applies misconducted himself by allowing his integrity to be called in question, by resigning as the Minister for Posts and Communications in the NCP Government, being provided with the use of hire car Reg. No. A2438 by ROBERT GOH through GOH AND PARTNERS and being re-appointed as the Minister for Posts and Communications in the SINURP Government".

In an earlier case, Regina v Francis Orodani CRC39,1996 the question was raised as to whether an offence can be created by provisions in a constitution. It was unnecessary to answer the question to decide that case. The question arises again in count 5 wherein the accused has been charged under, "Section 94(1)(c) of the Constitution as read with section 24 (1)" of the Leadership Code (Further Provisions) Act. I now answer it in this judgment. The latter citation merely provides for penalty. It is section 94(1)(c) of the Constitution that states what ~s prohibited, that is what the offence would be. When that question was raised, no legal authorities were provided in support. It was not a submission based on detailed examination of principles. It was simply a submission based on a general impression of someone who has general knowledge of principles in Law. It was the kind of submission which has become all too common in this court.

It is well known that the province of Constitutional Law is the rules, conventions, practices and customs that provide for organs of government, regulate their relationship to one another, and to the people. A written constitution is a document that states, in general terms, the system of government chosen by a people, what they perceive as their purpose as a state, what their philosophy about rights of persons are and their assumptions about fundamental values. It is usually a political, cultural and social statement as well as statement cf. laws The laws of the constitution are meant to be the fundamental guiding laws of a country. They are therefore the important general laws upon which detailed specific laws on particular subjects are based. See Chapter one of D. Hood Philip’s Constitutional and Administrate Law, Seventh Edition, and Stanley De Smith and Rodney Brazier’s Constitutional and Administrative Law, Sixth Edition chapter one.

From what I have said about the nature of constitutional law, one does not expect laws about details such as one creating a particular offence to be stated in a Constitution. That is generally the position. Is it therefore futile to state a particular law providing for an offence and even sentence in a constitution? Not so, and in the case of Solomon Islands I would give two reasons for that view. The first is that the Constitution of Solomon Islands, 1978, does not prohibit making such a law in the Constitution itself. The second reason is that it would be contrary to the principle of sovereignty of parliament. In Solomon Islands it is the Parliament that is the organ authorised to make laws for, "the peace order and good government in Solomon Islands". That is in chapter VI, section 59 of the Constitution. Parliament may make any law its members desire, even the Constitution may be altered by Parliament, although more stringent requirements in procedure are to be followed. It may be bad practice to crowd a constitution with detailed laws, but that does rot mean it is futile and courts should refuse to apply such detailed laws because they are found in a document usually reserved for the fundamentals. The Papua New Guinea case of Kedea Uru I cited earlier was in fact, a case in which the charge was under sections 27(1)(c) and (5)(b) of the Constitution of Papua New Guinea. The present question was not raised but the tribunal proceeded on the basis that section 97 of their Constitution created offence.

Section 14(1)(c) of the Constitution of Solomon Islands creates the offence of, allowing integrity to be called into question, it leaves it very general, as one would expect of a Constitution. That is also the case with section 27 of the Papua New Guinea Constitution. it was envisaged in section 95 of our Constitution that detailed laws on leadership responsibility would be made in statutes providing further provisions. Unfortunately the Leadership Code (Further Provisions) Act has omitted to first state that allowing integrity to be called into question is an offence and secondly to state the details of what acts or omission or conducts amount to the offence of allowing integrity to be called into question. It may not be easy to enumerate all such acts and conducts but a guide would suffice; the acts or conducts could be enumerated or examples could be given from which the court could interpret ejusdem generic. As it is it is left to the court to decide what the public would view as amounting to calling integrity into question. It should be the public through Parliament to tell the court what the court should look for when deciding which acts or conducts will lead to the public questioning the integrity of a leader. The range of such acts or conducts is very wide. It is, for example, relatively easy for court to say that integrity of a member is called into question if a member of parliament is paid by a foreign business company to introduce a bill in parliament that allows that company a monopoly in the particular business although that is not an offence. What about if a member of parliament cheers a foreign sports team in a contest against Solomon Islands' team? What about if the foreign team is a club team and not a national team in contest with a local club team which is a sports rival of the member of parliament's personal club team in Solomon Islands?. Would a decision not to marry, but have children with different women or men, be something that calls into question the integrity of a member of parliament or any other leader? What about if the decision was not to marry but have a child or children with one women or one man only? The border line conducts do not produce instant answers for or against integrity and that is why I think there is need to define acts that are to be regarded as giving rise to calling integrity into question. What I have said here also applies to the offence of a leader said to demean his office or position; the demeaning acts or conducts have not been enumerated nor are examples given.

In the instant case evidence has established that accused, a cabinet minister or a member of parliament has accepted benefit upon resigning from one political party or grouping and when political confidence in the government of the grouping he has resigned from was diminishing fast. That is not a borderline case in questioning the uprightness or integrity of a leader. It is clear to everybody that his actions tended to be for selfish ends other than for leadership. At the time, the question as to whether the Honourable Billy Hilly, Prime Minister would maintain enough numbers of members of parliament and thus confidence was public matter of concern. Had it been a conduct of equally divided view as to its blameworthiness, I would have declined to find that it amounted to integrity being called in question. Statute has left the category of the conducts rather general and it is my view that because the statute is a penal one courts should interpret it restrictively in favour of minimising the number or range of conducts. In my view there has been proof beyond reasonable doubt that Honourable Musuota, a member of parliament, a leader, allowed his integrity to be called into question. I find him guilty of the offence in sections 94(1)(c) of the Constitution as read with section 24(1) of the Leadership Code (Further Provisions) Act.

I must state clearly here that Honourable Musuota has not been convicted because he resigned as a minister or that he voted for a candidate other than one put forward by his political party or grouping. He has been convicted on counts 4 and 5 for what I may describe in common and simple language as, receiving the benefit of a hired car in circumstances that do not look good for a leader, a member of parliament.

Dated this 14th day of March 1997

At the High Court, Honiara

Sam Lungole-Awich,
Judge