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• CASE STUDY

  DEALING WITH BREACHES OF THE
  LEADERSHIP CODE IN
  PAPUA NEW GUINEA

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• Table of Contents
  Background/Perspective …………………………………………………………………………..3
  The Process ………………………………………………………………………………………………..5
  Tribunal Proceedings………………………………………………………………………………….6
  Implementation………………………………………………………………………………………….6
  Dismissal …………………………………………………………………………………………………….6
  How has it worked since Independence (16 September 1975)………………….7
  Sample of cases for discussion ………………………………………………………………….8
  Discussion issues ………………………………………………………………………………………..9
  Traditional Justice …………………………………………………………………………………..9
  Criminal Liability ……………………………………………………………………………………..9
  Penalties ……………………………………………………………………………………………… 10
  Leadership Code relevance in 2006 …………………………………………………… 10
  Other Nations ……………………………………………………………………………………… 10
  Attachment A …………………………………………………………………………………………. 11
  Table of leaders referred for prosecution by the Ombudsman
  Commission Under the Leadership Code as at 31 December 2005. …… 11
  Attachment B …………………………………………………………………………………………. 15
  NOTES ON THE CASE STUDY ON LEADERSHIP CODE – DEALING WITH
  BREACHES……………………………………………………………………………………………. 15
  Attachment C …………………………………………………………………………………………. 17
  PETI LAFANAMA …………………………………………………………………………………… 17
  Attachment D …………………………………………………………………………………………. 20
  ANDERSON AGIRU ………………………………………………………………………………. 20
  Attachment E………………………………………………………………………………………….. 25
  YAUWE RIYONG …………………………………………………………………………………… 25
  Attachment F ………………………………………………………………………………………….. 28
  EDITORIAL FROM THE NATIONAL NEWSPAPER PNG 15 AUGUST 2006 ……. 28

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• CASE STUDY1

  LEADERSHIP CODE – DEALING WITH BREACHES
  By George W Sullimann2

  Background/Perspective

  When the Constitution of the Independent State of Papua New Guinea (PNG)
  was adopted in 1975 it included a Leadership Code3 (the Code) for the leaders of
  PNG. This Code covered politicians and senior officers of political parties and
  senior public servants and officials.

  The Constitution established certain responsibilities of office for the leaders.
  These responsibilities extend to:

   Their conduct in both public or official life as well as private life;
   use of office for personnel gain;
   conviction of an offence in respect of the office or position or in relation to the
  performance of functions or duties; and
   disclosure of personnel and business income and financial affairs by the
  leaders to who the Code applies and of their families and associates,
  especially conflicts of interest related to their position.

  The Constitution is specific as to whom the Code applies:

   The Prime Minister, the Deputy Prime Minister and the other Ministers
   The Leader and Deputy Leader of the Opposition
   All other members of the Parliament

  1
  Sub-Regional Information and Experience Sharing Seminar on Public Ethics and Accountability held on
  26-30 August in Suva , Fiji
  2
  George W Sulliman has been the Auditor-General of Papua New Guinea from March 2005
  3
  Division III 2 Leadership Code of the Constitution of the Independent State of Papua New Guinea.

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•  All members of Provincial Assemblies and Local-level Governments
   All constitutional office-holders within the meaning of Section 221 of the
  Constitution
   All heads of Departments of the National Public Service
   All heads of or members of the boards or other controlling bodies of statutory
  authorities
   The Commissioner of Police
   The Commander of the Defence Force
   All ambassadors and other senior diplomatic and consular officials prescribed
  by an Organic Law or an Act of the Parliament
   The Public Trustee
   The personal staff of the Governor-General, the Ministers and the Leader and
  Deputy Leader of the Opposition
   Executive officers of registered political parties as defined by Section 128
  (“registered political party”)
   Persons holding such public offices as are declared under an Organic Law or
  an Act of Parliament to be subject to the Code.

  The Code provides for an Organic Law to give to the Ombudsman Commission,
  or any other authority the powers that are necessary for attaining the objects of
  the Code. The Organic Law on the duties and responsibilities of Leadership
  therefore:

   Includes provisions for disclosure of personal, financial and business
  information;
   Including powers to dispose of or place under the control of the Public Trustee
  any assets or income deemed desirable;
   prescribe specific acts that constitute misconduct in office;
   create offences
   provide for investigations;

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•  establish independent tribunals to refer beaches of the code and to actions if
  a person is found guilty; and
   other provisions deemed necessary for attaining the objects of the Code.

  The Code is found in 3 Constitutional Laws:

   the Constitution;
   the Organic Law on the Duties and Responsibilities of Leadership; and
   the Organic Law on the Integrity of Political Parties and Candidates.

  These Laws provide for a range of penalties for breaching the Code, including
  dismissal from Office and fines.

  The requirements of Leadership Code (Division III 2 of the Constitution) are
  referenced in a large number of Organic Laws and Acts of the Parliament.

  The Part II of the Organic Law on the Duties and Responsibilities of Leadership
  sets out the requirement for the Leader to provide a Statement of Income within 3
  months of assuming office for the previous 12 month period, and each 12 months
  after, a statement providing separately for the Leader, their spouse and children:
   total assets;
   total income;
   business connections;
   directorships;
   all business transactions;
   all gifts;
   all assets acquired during the period; and
   all liabilities incurred during the period.

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• The Organic Law also clearly sets out the responsibilities of a Leader including
  responsibilities relating to:
   Inappropriate use of Office for personal benefit;
   Personal interest (Conflict of interest);
   Inappropriate Company Directorships;
   Shareholding where there is a conflict of interest;
   Engaging in paid employment;
   Inappropriate interests in contracts;
   Acceptance or receipt of bribes;
   Acceptance or receipt of loans
   Misappropriation of funds
   Personal advantage gained for official information;
   Requirement to disclose interest prior to debating or voting; and
   Engagement of agents to act improperly on the Leader’s behalf.

  The Organic Law provides guidance regarding the Leaders responsibilities in
  regard to each of these areas and advises the Leader to seek direction or
  approval from the Ombudsman Commission if uncertain as to the application of
  the Organic Law.

  The Process

  Any person may make a complaint to the Ombudsman Commission regarding
  alleged or suspected misconduct in office against a Leader to whom this Organic
  Law on the Duties and Responsibilities of Leadership applies. Where there is a
  complaint made against a Leader the Ombudsman Commission is obliged to
  consider every complaint that it receives, but it has at all time discretion whether
  or not to investigate and whether to continue to investigate a complaint. Of

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• significance in PNG is that the Ombudsman Commission can investigate matters
  on its own initiative.

  Where the Ombudsman Commission considers it appropriate it will undertake
  investigations into the complaint. Where the Ombudsman Commission cannot
  for any reason undertake the investigation itself, it may appoint one or more
  constitutional officer holders to undertake the investigation. The Ombudsman
  Commission:

   must advise the individual under investigation that the investigation is to
  proceed;
   must conduct hearings in private;
   obtain information or hear any person that the Ombudsman Commission
  considers can assist;
   other than the individual being investigated, no other person has the right to
  be heard by the Ombudsman Commission unless the Commission chooses;
   may require any person, who in its opinion is able to provide information
  relating to any alleged or suspected misconduct, to furnish that information;
  and
   may summons any individual to appear before the Ombudsman Commission.

  Evidence provided in sworn testimony is not admissible in evidence against any
  person in any court, or any inquiry or any other proceedings.

  If, after an investigation, the Ombudsman Commission is of the opinion that there
  is evidence of misconduct in office it may refer the matter to the Public
  Prosecutor for prosecution before the appropriate tribunal. If the Public
  Prosecutor fails to refer the matter to a tribunal or the Ombudsman Commission
  considers that the matter has not been properly referred, the Ombudsman

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• Commission may itself refer the matter to the tribunal. The appropriate tribunal
  depends on the (status of the) Leader being referred.

  Tribunal Proceedings4

  A leadership tribunal will investigate and determine any case of alleged or
  suspected misconduct in office referred to it. It will make due inquiry into the
  matter referred to it without regard to legal formalities or the rules of evidence. It
  may inform itself in such matter as it thinks proper, subject to compliance with the
  rules of natural justice. Its proceedings are not judicial proceedings. It has the
  same powers of investigation as the Ombudsman Commission. The purpose of
  its inquiry is to determine whether a leader is guilty of misconduct in office; and if
  the leader is guilty, to recommend as appropriate, that that person be dismissed
  from office or position or that some other penalty provided by law be imposed.

  Implementation5

  Where the tribunal makes a recommendation to the appropriate authority (the
  Governor-General or the appropriate appointing authority) the appropriate
  authority must act in accordance with the recommendation. (Section 28(2)&(3) of
  the Constitution).

  Dismissal

  4
  Page 26 Ombudsman Commission of PNG ANNUAL REPORT 2002.
  5
  Page 27

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• Where a tribunal finds a Leader is guilty of misconduct the tribunal must
  recommend dismissal from office or position, unless it finds that there was no
  serious culpability on the part of the Leader and the public policy and the public
  good do not require dismissal.
  Further, the Constitution requires that a Leader who is dismissed for misconduct
  in office is not eligible for 3 years:

   to election to any elective public office; or
   for appointment as Head of State or as a nominated member of the
  Parliament; or
   for appointment to a provincial legislature or provincial executive or local-level
  government body.

  How has it worked since Independence (16 September
  1975)

  Up until 31 December 2005 a total 77 leaders had been referred for prosecution
  by the Ombudsman Commission. Of these:

   34 were found guilty
  o 21 dismissed from office
  o 8 fined
  o 4 resigned prior to dismissal
  o 1 criminal conviction;
   13 resigned
  o 11 after appointment of tribunal
  o 2 after tribunal commenced;
   6 lost office in an election during the process;
   5 had their appointment revoked or their appointment expired;

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•  1 not referred by the Public Prosecutor;
   6 found not guilty; and
   12 cases are still pending.

  The Code only relates to Leaders who currently hold Office or other public
  appointments. Therefore once a Leaders term expires, they lose office in an
  election, or their appointment is revoked, the jurisdiction of the Code, the
  Ombudsman Commission or the tribunal is no longer valid. Although on return to
  Office or reappointment the process can continue. Taking this into account the
  success of referrals by the Ombudsman Commission is impressive.

  Even more significant is the range of Leaders that have been referred by the
  Commission. This includes:
   43 elected Members of the Parliament;
   13 Ministers of the Crown;
   4 Departmental Secretaries;
   6 Provincial Governors;
   6 Managing Directors or Chairman;
   2 Deputy Prime Ministers; and
   2 Deputy Leaders of the Opposition.

  Those referred include the High Commissioner to London, the Commander of the
  Defence Force, the Commissioner of Police, the Electoral Commissioner, the
  Auditor-General, an Ombudsman and a Judge of the National Court and
  Supreme Court.

  Sample of cases for discussion

  Attached are 3 cases illustrating how the leadership code has been applied:

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•  Anderson Agiru – Governor, Southern Highlands Province and elected
  member of the National Parliament for Southern Highlands Provincial.
   Yauwe Riyong – Elected member for the National Parliament for Chuave
  Open (Simbu).
   Peti Lafanama – Elected member for the Eastern Highland Provincial.

  These provide a range of cases for background reading. Two of these cases
  have been finalised and there are no appeals outstanding and the members were
  dismissed. Another case did not proceed as the member lost his seat at the
  election.

  The cases cover a range of issues ranging from:
   a member’s failure to disclose financial position;
   to improper/illegal conduct;
   to improper handling of public monies;
   misappropriation;
   accepting benefits; and
   to improper use of public monies.

  Anderson Agiru was found guilty on 12 charges of misconduct, was dismissed
  from office and thus ineligible to hold public office for a period of 3 years.

  Yauwe Riyong was referred to the Public Prosecutor on 9 charges including:
  financial conflict of interest, inappropriate behaviour, making false statement to
  the Ombudsman, benefiting from Office and inappropriate use of public monies.

  Peti Lafanama was found guilty on 3 charges of misconduct including receiving
  and using public monies unlawfully and inappropriately receiving benefit from

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• Office. Mr Lafanama was fined K4,800 (approximately US$1440), a result that
  the Ombudsman Commission, in his Annual Report, stated to be absurd
  considering the gravity of the referral.

  No criminal charges were laid against any of the members.

  Discussion issues

  These cases highlight some of the best and worst attributes of the enforcement
  of the leadership code.

  Traditional Justice

  As part of this discussion it is necessary to put the concept of the leadership code
  and its enforcement into perspective. Papua New Guinea, like many of the
  Pacific Nations found themselves with a legal and judicial system based on the
  British system and introduced during colonial days. The British system is very
  different from the traditional systems of justice and punishment that have served
  these communities for possibly thousands of years and in some cases in Papua
  New Guinea still do – for example the Village Court. Like the Village Court of old,
  the Leadership Tribunal represents the leaders, or big men, of the village hearing
  allegations against a Villager and passing judgement. There are no rules of
  evidence and the process relies on the leaders ‘doing the right thing and fair play’
  in forming their judgement. The old system continues to work well and is
  supported by a process of appeals to the contemporary justice system if
  appropriate. The sanctions applied are also very traditional. There was

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• significant loss of face in being found guilty, and while fines may only be token,
  they had a big public impact. It is significant that Sir Kubulan Los, Judge of the
  National Court, in reducing the penalty for Peti Lafanama from dismissal to a fine,
  drew a distinction between criminal liability and liability under the Leadership
  Code.

  The manner in which the Ombudsman Commission conducts hearings is
  currently under review by a Special Parliamentary Select Committee. One issue
  of debate is the ability of the Commission and Tribunal hearings not to be
  governed by the ‘laws of evidence’ but to ensure compliance with the rules of
  natural justice. This needs to be balanced against the fact that it is not a criminal
  court but a Leadership Tribunal considering the behaviour of Leaders.

  Criminal Liability

  It is significant that of the 77 cases referred to the Public Prosecutor none have
  been referred for criminal prosecution on completion. There have been incidents
  where no further action has been taken after referral as the leader has been
  convicted of a criminal offence and no longer holds office and is therefore no
  longer subject to the Leadership Code.

  Penalties

  The penalties that can be applied by the Tribunal include small fines and
  dismissal from Office which results in the Leader not being able to hold public
  Office for three years. There has been a deal of public debate both ways on this.
  Mostly there are those that require greater sanctions, including forfeiture of the
  right to hold public office indefinitely. Significantly a proposal for a private

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• members bill to only apply a fine and no option of dismissal was met with strong
  protests from the public, the press and institutions such as Transparency
  International. The proposal went no further. The Ombudsman Commission in its
  submission to the Special Parliamentary Select Committee, referred to below,
  has indicated that the amount of fines that can be applied for breaches of the
  leadership code were set some 30 years ago and has recommended that the
  legislation be changed to be expressed as ‘fines not exceeding K100,000’
  (approximately US$30,000). The Commission is also seeking the power to
  recover monies or assets lost as a result of breaches of the code.

  Leadership Code relevance in 2006-08-15
  This is a reasonable question to ask – should we still be persevering with this
  process in this day and age? Is the process seen as inhibiting more formal and
  possibly stronger investigations and penalties?

  Other Nations

  Is there a similar process in other Nations that we could learn from, especially in
  other Pacific States? How do other Nations deal with similar issues regarding the
  behaviours of elected member and senior officials?

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• Attachment A

  Table of leaders referred for prosecution by the Ombudsman
  Commission Under the Leadership Code as at 31 December
  2005.

  LEADERS REFERRED FOR PROSECUTION BY THE
  OMBUDSMAN COMMISSION UNDER THE LEADERSHIP
  CODE AS AT 31 DECEMBER 2005

  No LEADER OFFICE YEAR RESULT
  1 MOSES SASAKILA MP, Minister for Culture 1976 Guilty – dismissed – later set aside by
  Supreme Court
  2 BRIAN GREY General Manager, 1978 Guilty – reprimanded
  National Airline Commission
  3 AKO TOUA Commissioner, 1978 Guilty – suspended
  Electricity Commission
  4 KEI NIRGAB Acting Secretary, 1978 Guilty – dismissed
  Department of Works & Supply
  5 JAMES MOPIO MP 1981 Guilty – dismissed
  6 OPAI KUNANGEL MP; Minister for Commerce 1982 Resigned after appointment of tribunal
  7 PIOUS KEREPIA Secretary, 1983 Guilty
  Department of Works & Supply
  8 ILINOME TARUA PNG High Commissioner to 1983 Guilty
  London
  9 MICHEAL PONDROS MP 1983 Guilty – dismissed
  10 LENNIE APARIMA MP 1985 Not guilty
  11 EZEKIEL BROWN Managing Director, National 1985 Guilty – fined
  Provident Fund
  12 JULIUS CHAN MP; Deputy Prime Minister for 1988 Not Guilty
  Finance
  13 JOHN KAPUTIN MP 1988 Guilty – fined
  14 OBUM MAKARAI Chairman, Papua New 1988 Guilty – fined
  Guinea Banking Corporation
  15 KEDEA URU Chairman, National 1988 Not guilty
  Broadcasting Commission
  16 GERALD SIGULOGO MP 1989 Guilty – dismissed – judicial review by
  leader unsuccessful
  17 SUSVEL LAUMAEA Chief of Staff, Office of the 1990 Public Prosecutor failed to refer matter
  Prime Minister to tribunal – no further action
  18 GABRIEL RAMOI MP 1990 Resigned after appointment of tribunal
  19 ESEROM BUREGE MP 1990 Resigned after tribunal commenced
  hearing
  20 TED DIRO MP; Deputy Prime Minister, 1991 Guilty – recommended for dismissal –
  Minister for Forests resigned before dismissal effected
  21 TOM AMAIU MP 1992 Resigned after appointment of tribunal

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• LEADERS REFERRED FOR PROSECUTION BY THE
  OMBUDSMAN COMMISSION UNDER THE LEADERSHIP
  CODE AS AT 31 DECEMBER 2005

  No LEADER OFFICE YEAR RESULT
  22 TONY ILA MP 1992 Guilty – resigned before decision on
  penalty
  23 TIMOTHY BONGA MP 1992 Resigned – later guilty – dismissed
  24 PETER GARONG MP 1992 Resigned – later guilty – dismissed
  25 GALEN LANG MP 1992 Resigned – later died in office
  26 MELCHIOR PEP MP 1992 Resigned – later guilty – dismissed
  27 PHILIP LAKI MP 1993 Guilty – recommended for dismissal –
  resigned before dismissal effected
  28 ABDREW POSAI MP; Minister for Forests 1995 Guilty – dismissed – judicial review
  unsuccessful
  29 JOHN NILKARE MP; Minister for Village 1995 Guilty – dismissed – later reviewed by
  Services and Provincial Affairs Supreme Court – penalty altered to
  fine
  30 PAUL PORA MP; Minister for Civil Aviation 1995 Guilty – fined – judicial review by Public
  Prosecutor unsuccessful
  31 JEFFREY BALAKAU MP; Governor, Enga Province 1996 Guilty – dismissed – judicial review
  unsuccessful
  32 GABRIEL DUSAVA Secretary, 1996 Guilty – dismissed – judicial review
  Department of Foreign Affairs unsuccessful
  33 YAIP AVINI MP; Minister for Health 1996 Lost office through criminal conviction
  34 JOSEPH ONGUGLO MP; Minister for Education 1996 Resigned after tribunal commenced
  hearing
  35 ALBERT KARO MP 1997 Lost office in election
  36 PETER YAMA MP; Minister for Transport and 1997 Lost office in election – later re-elected
  Works Dismissed from office on 01.12.04. On
  04.02.05 National Court quashed the
  penalty of dismissal, dismissed 2 guilty
  findings and imposed a fine of K1000.
  Leader is reinstated as member of
  Parliament for Ussino – Bundi.
  Appeal by the Public Prosecutor is
  pending.
  37 AMOS YAMANDI MP 1997 Lost office in election
  38 JERRY SINGIROK Commander of the Defence 1999 Guilty – dismissed – judicial review
  Force unsuccessful
  39 MICHAEL GENE Secretary, Department of 2000 Appointment revoked prior to
  Attorney-General; Attorney- appointment of tribunal
  General
  40 JIM KAS MP; Governor, Madang 2000 Guilty – dismissed – judicial review
  Province unsuccessful
  41 PETER PEIPUI MP; Deputy Leader of the 2000 Guilty – dismissed – later reviewed by
  Opposition Supreme Court – decision on guilt
  affirmed but penalty altered to fine –
  slip rule application by Public
  Prosecutor rejected

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• LEADERS REFERRED FOR PROSECUTION BY THE
  OMBUDSMAN COMMISSION UNDER THE LEADERSHIP
  CODE AS AT 31 DECEMBER 2005

  No LEADER OFFICE YEAR RESULT
  42 ANDERSON AGIRU MP; Governor, Southern 2000 Guilty – dismissed – judicial reviews
  Highlands Province unsuccessful
  43 JOHN WAKON Commissioner of Police 2000 Appointment revoked – judicial review
  of referral unsuccessful
  44 KUK KULI MP 2001 Resigned after appointment of tribunal
  45 BERNARD MOLLOK MP 2001 Resigned after appointment of tribunal
  46 JACOB WAMA MP 2001 Resigned after appointment of tribunal
  47 JOHN KAMB MP; Minister for 2001 Not guilty
  Communications and High
  Technology
  48 BEVAN TAMBI MP 2001 Resigned after appointment of tribunal
  49 PETI LAFANAMA MP; Governor, Eastern 2001 Guilty – dismissed – later reviewed by
  Highlands Province National Court-decision on guilt
  affirmed but penalty altered to fine
  50 PETER WAOEMG MP 2001 Resigned after appointment of tribunal
  51 ANDERSON AGIRU MP; Governor, Southern 2001 Guilty – dismissed – judicial
  Highlands Province
  52 VINCENT AUALI MP; Minister for 2001 Resigned after appointment of tribunal
  Corporatisation and
  Privatization
  53 BERNARD HAGORIA MP 2002 Resigned after appointment of tribunal
  54 MAO ZEMING MP 2002 Guilty – dismissed – decision on judicial
  -review to be delivered on 03.02.06
  56 IAIRO LASARO MP 2002 Lost office in election
  57 YAUWE RIYONG MP 2002 Lost office in election
  58 JOHN TEKWIE MP 2002 Lost office in election
  59 THOMAS PELIKA MP; Deputy Leader of the 2002 Lost office in election
  Opposition
  60 ANDREW KUMBAKOR MP; Minister for Finance, 2002 Not guilty
  Planning and Implementation
  and Rural Development
  61 MICHEAL NALI MP 2002 Guilty – fined
  62 ALFRED DANIEL Chairman, National Gaming 2002 Appointment expired after request for
  Control Board tribunal
  63 REUBEN KAIULO Electoral Commissioner 2002 Appointment expired after matter
  referred to tribunal
  64 CES IEWAGO Managing Director, Public 2003 Appointment revoked prior to request
  Officers Superannuation Fund for tribunal
  65 MICHAEL NALI MP 2003 Guilty – dismissed. Judicial Review
  pending
  66 DANIEL KAKARAYA Managing Director, Mineral 2003 Pending – application for judicial
  Resources Development review in National Court pending
  Corporation Ltd
  67 MARK WANI Auditor-General 2003 Guilty – dismissed. Judicial Review

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• LEADERS REFERRED FOR PROSECUTION BY THE
  OMBUDSMAN COMMISSION UNDER THE LEADERSHIP
  CODE AS AT 31 DECEMBER 2005

  No LEADER OFFICE YEAR RESULT
  pending
  68 RAHO HITOLO Ombudsman 2004 Tribunal disbanded due to lack of
  jurisdiction. Matter pending
  69 MARK SEVUA Judge of the National Court 2004 Pending
  and Supreme Court
  70 PETER IPATAS MP Governor of Enga 2004 Pending. Application for leave to seek
  Province Judicial Review pending
  71 GALLUS YUMBUI MP 2004 Pending
  72 CHARLIE BENJAMIN MP 2005 Pending
  73 GABRIEL KAPRIS MP, Minister for Works 2005 Pending
  74 ANO PALA Clerk of the National 2005 Pending
  Parliament
  75 PUKA TEMU MP, Minister for Lands & 2005 Pending
  Physical Planning
  76 JAMES YALI MP, Governor Madang 2005 Pending
  Province
  77 ANDREW BAING MP, Deputy Leader of the 2005 Pending
  Opposition

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• Attachment B

  NOTES ON THE CASE STUDY ON LEADERSHIP CODE –
  DEALING WITH BREACHES

  The responsibilities imposed on leaders extend to:

   Their conduct in both public or official life as well as private life and
  their association with other persons so as not –

  o To place himself in a position in which he has or could have
  a conflict of interests or might be compromised in
  discharging his public or official duties,
  o To demean his office or position,
  o To allow his public or official integrity, or his personal
  integrity, to be called into question, and
  o To endanger or diminish respect for and confidence in the
  integrity of government; and
   Use of Office for personal gain, enter into any transaction or engage
  into any enterprise or activity that might be expected to give rise to
  doubt in the public mind.

  The responsibilities of leaders also require that:

   A leader who is convicted of an offence in respect of his Office or
  position or in relation to the performance of his functions or duties; or
   Who fails to comply with the Ombudsman Commission’s directions and
  the responsibilities imposed on him through the Leadership Code is
  guilty of misconduct in Office.

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• The Organic Law on the Duties and Responsibilities of Leadership:

   Include provisions for disclosure of the personal or business incomes and
  financial affairs, and in particular of interests in governmental contracts
  bodies and of directorship and similar Offices held;
   Empowers disposal of a placement under the control of the Public Trustee,
  any assets or income whose this seems to be desirable for attaining the
  objectives of the Code;
   Prescribe specific acts that constitute misconduct in Office;
   Create offences;
   Provide for investigations by the Ombudsman Commission;
   Establish independent tribunal –
  o To investigate and determine cases of alleged or suspected
  misconduct in Office, and
  o To make recommendations for dismissal if found guilty, or other
  penalty; and
   Provides for the suspension from Office of a person pending the
  investigation of alleged or suspected misconduct.

  Proceedings by the tribunal are not judicated proceedings but are subject to the
  principles of natural justice in that;

   No such proceedings are a bar to any other proceedings provided for by
  law, and
   No other proceedings provided for by law are a bar to proceedings by the
  tribunal.

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• Attachment C

  PETI LAFANAMA

  OVERVIEW

  Offices Member for Eastern Highlands Provincial;
  Member, Eastern Highlands Provincial Assembly,
  Members of the personal staff of the Prime
  Minister offices subject to the Leadership Code
  by virtue of Sections 26(1) (c) 26 (1) (d) and 26
  (1) (I) of the Constitution),
  Dates of referral to Public Prosecutor 21 September, 2001
  Date of request for appointment of tribunal 29 January, 2002
  Date of appointment of tribunal 19 April, 2002
  Composition of tribunal Mr Justice Robert Woods (Chairman) and Senior
  Magistrates Mr Allan Kopi and Mr Mekeo
  Gauli.
  Date of referral to tribunal 10 May, 2002
  Legal representation Mr C Manek, Public Prosecutor;
  Mr P Paraka, of Paula Paraka Lawyers, for the
  leader
  Hearing dates 10, 14, 15, 16, 17, 20, May 2002
  Decision and recommendation Guilty of all three allegations of misconduct in
  office – tribunal recommended dismissal from
  office
  Date recommendation given 20 May 2002
  Implementation Not effected
  Judicial review On 21 May, 2002 Mr Lafanama field an
  application in the National Court for leave to
  seek judicial review of the tribunal decision. On
  24 May 2002 Amet CJ heard that application
  and granted leave for judicial review. On 4
  June 2002 the National Court (LOS J) heard the
  application for review which decision was
  delivered on 6 June 2002 dismissing all grounds
  except the ground on penalties which was
  upheld and the penalty of dismissal substituted
  with a fine of K1,6000.00 on each count.
  Result Mr Lafanama is guilty of three allegations of
  misconduct in Office and is to pay a fine of
  K4,800.00. He was an unsuccessful candidate in
  the 2002 general election.

  Details

  On 16 July 1997 Mr Lafanama assumed office as member for Eastern Highlands Provincial
  in the National Parliament and became a member of the Eastern Highlands Provincial
  Assembly. He became the Governor of the Eastern Highlands province.

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• Page 22 of 33

• On 28 August 1998, the Supreme Court held that there was undue influence involved in
  Mr. Lafanaman’s election. It declared his election void and ordered that a new election
  be conducted for the electorate. On 28 September 1998 the then Prime Minister, Mr Bill
  Skate, appointed Mr Lafanama as a First Secretary on his official personal staff under the
  Official Personal Staff Act, As a consequence, Mr Lafanama again became a leader, by
  virtue of Section 26 (i)(I) of the Constitution and Section 1 of the Organic Law on the
  Duties and Responsibilities of Leadership.

  On 14 July 1999 Mr Lafanama again took office as the member for Eastern Highlands
  Provincial, after a by-election.

  In January, 2002 the Ombudsman Commission obtained information concerning
  apparent irregularities in the distribution and application of funds of the National Gaming
  Control Board (the Gaming Board).

  From the information obtained, it appeared the substantial amounts of money held in
  accounts controlled by the Gaming Board had been distributed to various leaders,
  including Mr Lafanama.

  The Commission on its own initiative commenced an investigation into suspected
  misconduct in office by the leaders concerned.

  On the 17 November, 2000 a right to be heard notice was served on him. On 6
  December, 2000 he responded in writing. The ombudsman Commission deliberated on
  Mr. Lafanaman’s response and concluded there was a prima facie case he had been
  guilty of misconduct in office. On 21 September 2001, the matter was referred to the
  Public Prosecutor.

  The Ombudsman Commission’s statement of reasons provided to the Public Prosecutor
  puts the allegations of misconduct in office into four categories. The first three arise out
  of regularities in receipt and application by Mr Lafanama of funds of the Gaming Board
  and the last category concerns the leader’s failure to comply with his constitutional duty
  to give true and complete annual statements to the Ombudsman Commission. While
  the leader did provide annual statements, it is alleged they were misleading and
  incomplete in material particulars. The Commission concluded that Mr Lafanama
  appeared to have:

   Received public money from the Gaming Board in the form of a cheque for
  K10,000.00 without lawful authority;

   Converted all of the proceeds of the cheque, being public money, to his
  personal use and the use of his associates;

   Dishonestly misappropriate public money, thereby committing offences under the
  Criminal Code; and

   Failed to disclose to the Ombudsman Commission the assets (including money
  and personal property) that had come into his possession and control as a result
  of receiving cheques from the Gaming Board.

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• Page 23 of 33

• In the statement of reasons the Ombudsman Commission noted that it was
  unacceptable for Mr Lafanama to suggest that he received public money as a “private
  citizen” and to say that he is not accountable for how he spent that money.

  A leadership tribunal chaired by Sir Robert Woods inquired into three allegations of
  misconduct in office referred to it by the Public Prosecutor. The tribunal found the leader
  guilty of all three allegations of misconduct in Office.

  The tribunal found that Mr Lafanama through his position:

   Sough and received public monies without lawful authority;

   Received that benefit by reason of his position as an officer on the personal staff
  of the Prime Minister without lawful authority; and

   Obtained monies from a fund under the control of Papua New Guinea and
  intentionally applied it to purposes to which it could not lawfully be applied by
  depositing it into his personal account.

  Mr Lafanama was found guilty of all allegations presented by the Public Prosecutor. The
  tribunal said it was satisfied that each could involve a similar abuse of the privilege and
  authority and responsibility of leadership and that each count warranted dismissal.
  Therefore, the tribunal recommended that Mr Lafanama be dismissed from Office as a
  member of parliament, on each could found guilty.

  On 21 May 2002, Mr Lafanama field an application in the National Court for leave to
  seek judicial review of the tribunal’s decision. On 24 May 2002, Amet CJ heard that
  application and granted leave. On 4 June 2002, the National Court (Los J) heard the
  application for review. The decision was delivered on 6 June 2002. Los J dismissed all
  grounds except the one on penalty, which was upheld. The penalty of dismissal was
  substituted with a find of K1,600.00 on each count.

  The result was that the Court imposed a fine of K4,800.00 on a leader who had
  misapplied K10,000.00 of public money, by putting it to his own use. On the face of it, this
  was, in the opinion of the Ombudsman Commission, an absurd result.

  For further details of the court proceedings, see chapter 8.

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• Page 24 of 33

• Attachment D

  ANDERSON AGIRU

  Mr Agiru was referred to the Public Prosecutor twice. The first time was on 9 November
  2000. That referral concerned alleged misconduct arising from outstanding annual
  statements and an incident at Mendi airport. The second time was on 6 November 2001.
  That referral concerned an incident at the Port Moresby Golf Club.

  Overview

  Offices Member for Southern Highlands Province; Governor,
  Southern Highlands Province; Member, Southern Highlands
  Provincial Assembly (offices subject to the Leadership Code
  by virtue of sections 26 (1) (c) and 26 (1) (d) of the
  Constitution).
  Dates of referral to Public 9 November 2000; 6 November 2001.
  Prosecutor
  Date of request for appointment 15 October 2001.
  of tribunal
  Date of appointment of tribunal 7 November 2001.
  Composition of tribunal Mr Justice Don Sawong (Chairman) and Senior Magistrates
  Mr Patrick Baiwan and Mr Peter Toliken.
  Date of referral to tribunal 16 November 2001.
  Legal representation Mr J Pambel for the Public Prosecutor; Mr G Sheppard and
  Mr B Andrew of Maladinas Lawyers, for the leader.
  Hearing dates 16, 28, 29, 30 November, 11, 13, 17, 18, 19, 21 December
  2001, 16, 17, 18, 20 January 2002.
  Decision and recommendation Guilty of 12 allegations; not guilty of 3. Tribunal
  recommended dismissal on 5 allegations and a fine of
  K1,000.00 each on 7 allegations.
  Date recommendation given 18 January 2002.
  Implementation 20 January 2002
  Judicial review On 22 January 2002, the leader applied for leave for judicial
  review before the National Court. On 15 March 2002, the
  National Court declined the application.

  On 25 March 2002, Mr Agiru filed an application in the
  Supreme Court for a review of the decision of the National
  Court. On 2 May 2002, the Supreme Court heard Mr
  Agiru’s application. On 24 May 2002, the Supreme Court
  refused the application.

  On 29 May 2002, Mr Agiru filed a new application in the
  National Court. On 11 June 2002, the National Court heard
  the application. On 12 June 2002, the Court dismissed the
  application.

  On 13 June 2002, Mr Agiru filed an appeal in the Supreme
  Court against the decision of the National Court. On 24 June

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• Page 25 of 33

• 2002, the Supreme Court dismissed the application.
  Result Mr Agiru is dismissed and disqualified from holding public
  office under Section 31 of the Constitution until 21 January
  2005.

  Details

  On 16 July 1997, Mr Agiru took office as the member for Southern Highlands Provincial.
  He became the Provincial Governor and a member of the Provincial Assembly. He had
  previously held leadership positions as a member of the official personal staff of a
  number of different Ministers, over a period of nine years.

  Various allegations of misconduct in office had been put to Mr Agiru in four separate
  right to be heard notices, given to him in the period from December 1997 to September
  2000.

  In December 1997, Mr Agiru was given notice of his right to be heard on his alleged
  failure to give annual statements to the Ombudsman Commission for 1993/94, 1994/95
  and 1995/96.

  In January 1998, Mr Agiru was given a right to be heard on his alleged failure to give an
  annual statement to the Ombudsman Commission for 1996/97.

  In August 2000, Mr Agiru was given a right to be heard on his alleged unlawful possession
  of a high-powered firearm. This matter came to light when an article headed “Only God
  will remove us…” was published on page 3 of the 31 July 2000 edition of the Post-Courier
  newspaper. A photograph showing Mr Agiru at Mendi airport shaking hands with the
  Minister for Provincial and Local-level Government Affairs, Mr Iairo Lasaro, accompanied
  it. In his left hand Mr Agiru was carrying what appeared to be an AR-15 semi-automatic
  high-powered firearm. Three other members of the Parliament also appeared in the
  photograph.

  In September 2000, Mr Agiru was given notice of his right to be heard on his alleged
  failure to give annual statements to the Ombudsman Commission for 1997/98 and
  1998/99.

  Mr Agiru did not respond to any of the above right to be heard notices.
  The Ombudsman Commission deliberated on the matter and concluded there was a
  prima facie case that Mr Agiru was guilty of misconduct in office. Accordingly, the
  Commission was obliged by Section 29 (1) of the Constitution and Sections 17 (d), 20(4)
  and 27 (1) of the Organic Law on the Duties and Responsibilities of Leadership to refer the
  matter to the Public Prosecutor, which it did on 9 November 2000.

  Second incident

  On Monday 24 September 2001, an article appeared in “the drum” column of the Post-
  Courier newspaper, which referred to a “well-known politician”. He was said to have held
  “his pistol to the head of a player” while playing a game of golf at “a local sporting club”.
  The Ombudsman Commission received information that the politician referred to was Mr
  Agiru. While the article referred to above states that the incident occurred on the

  25

• Page 26 of 33

• “weekend”, it in fact occurred on the afternoon of Monday 17 September 2001 (the
  Independence Day public holiday, following the weekend of 15 and 16 September).

  The Ombudsman Commission’s investigation revealed that at about 4.00 pm on Monday
  17 September 2001 Mr Agiru went to the Port Moresby Golf Club, of which he was a
  member, to play a game of golf. Soon after teeing off, Mr Agiru had an altercation with
  another golfer who had hit a golf ball in his direction.

  He allegedly assaulted the other golfer by poking him in the chest with his finger while
  simultaneously producing a pistol and using threatening languages.

  The Commission took into account the statements of witnesses and the leader’s written
  statements concerning the incident.

  Inquiries made by the Ombudsman Commission established that, at the time of the
  incident, Mr Agiru was not the holder of a current firearm license.

  The Commission deliberated on Mr Agiru’s written response. It was not satisfied that any
  of the matters raised by him justified the brandishing of a pistol in a recreational sport
  setting.

  The Commission was satisfied that there was a prima facie case that Mr Agiru was guilty
  of misconduct in office and referred the matter to the Public Prosecutor.

  On 15 October 2001 the Public Prosecutor, Mr Chronox Manek, exercised his discretion
  under Section 177 of the Constitution to bring proceedings against Mr Agiru for
  misconduct in office. He did so by requesting the Chief Justice, Sir Arnold Amet, to
  appoint an independent tribunal to investigate, inquire into and determine the alleged
  misconduct. On 7 November 2001 the Chief Justice appointed the tribunal.

  On 16 November 2001 the matter was formally referred to the tribunal. The tribunal ran to
  18 January 2002 when it announced its decision in public.

  There were three categories of allegations. First, concerning the leader’s failure to
  comply with his constitutional duty to give annual statements to the Ombudsman
  Commission. Secondly, concerning the leader’s illegal possession of a high-powered
  firearm at Mendi Airport. Thirdly, concerning the incident at the Port Moresby Golf Club.

  Mr Agiru was found guilty of 12 allegations of misconduct in office.

  Annual statements (guilty of allegation Nos 1, 2, 4, 5, 6, 7)

  The tribunal found the leader guilty of failing without reasonable excuse to submit five
  annual statements to the Ombudsman Commission.

  In respect of each finding, the tribunal recommended a fine of K1, 000.00. As to
  allegation No 7, which was framed as an integrity charge under Section 27 of the
  Constitution, the tribunal said the leader’s consistent failures, despite numerous reminders,
  was an act amounting to serious culpability, contrary to his serious obligations required
  by the Constitutional Laws. The tribunal recommended dismissal on allegation No.7

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• Page 27 of 33

• Mendi Incident (guilty of allegations Nos 8, 10, 11, 12).

  No 8 involved unlawful possession of a high-powered firearm. No 10 was displaying that
  firearm in a public place in public view. No 11 was allowing himself to be photographed
  by the Post-Courier. No 12 was misleading the public in an interview with a Post-Courier
  journalist.

  As to No 12, there was no serious culpability and a fine of K1,000.00 was recommended.
  As to the other three the tribunal said there was serious culpability and that each
  instance of misconduct was contrary to the concepts of public good and public policy.
  “We consider a breach of any criminal law by a leader to be very serious. “ Dismissal was
  thus recommended for each of Nos 8, 10 and 11.

  Port Moresby Golf Club incident (guilty of allegation Nos 13 and 15

  No 13 was another finding of misconduct in office for being in unlawful possession of a
  firearm. The tribunal noted that the leader had clearly breached the provisions of a
  criminal law. “The members of the public expect their leaders to have integrity and
  comply with all the laws of the country to the best of their abilities. “ Mr Agiru was
  seriously culpable and therefore No. 13 warranted dismissal.

  No. 15 concerned the assault of a fellow golfer. Here the tribunal said that, given its
  findings on the evidence available, the most serious penalty of dismissal should not be
  imposed. Instead a fine of K1,000.00 was recommended.

  Penalty

  The tribunal cited the relevant law. It says that, having found a leader guilty of
  misconduct in office, the tribunal must recommend dismissal unless it is satisfied that there
  was no serious culpability and that public policy and the public good do not require
  dismissal.

  The tribunal said it had thought at length about the leader’s great work, his
  achievements for his country and the Southern Highlands Province:

  We agree he has been a fine example who has done a lot for his
  province. In this, he has much in common with many other leaders
  and it is of great sadness to the tribunal that he has been brought to
  this situation.

  In summing up the tribunal quoted from the Final Report of the Constitutional Planning
  Committee.

  No one can do more to set the tone and style of the nation than the
  leaders. Contrariwise, no one in the nation can do more to lower the
  standards than the leaders.

  27

• Page 28 of 33

• On 20 January 2002 the tribunal transmitted its recommendation to Government House.
  The Acting Governor-General, Mr Bernard Narokobi, pursuant to Section 28 (2) of the
  Constitution, implemented the recommendation by executing an instrument of dismissal
  and fine. Mr Agiru was dismissed from office as the member for Southern Highlands. By
  operation of law he also lost office as Governor of the Province.

  He is ineligible for public office under Section 31 of the Constitution for a period of three
  years after the date of his dismissal.

  28

• Page 29 of 33

• Attachment E

  YAUWE RIYONG

  Offices Member for Chuave Open; Member, Simbu
  Provincial Assembly (offices subject to the
  Leadership Code by virtue of Sections 26(1) (c)
  26 (1) (d) of the Constitution).

  Date of referral to Public Prosecutor 14 June 2002.

  Date of request for appointment of tribunal No request by Public Prosecutor.

  Result The leader was an unsuccessful candidate in
  the 2002 general election. He has not held any
  offices since then subject to the Leadership
  Code, so no further action could be taken by
  the Public Prosecutor. If he becomes a leader
  again the matter may be reactivated.

  Details

  On 16 July 1992 Mr Riyong took office as the member for Chuave Open in the National
  Parliament.

  On 8 March 2001, he was served with a right to be heard notice. He did not exercise his
  right to be heard.

  The Ombudsman Commission deliberated on Mr Riyong’s matter and concluded that
  there was a prima facie case he had been guilty of misconduct in office. On 14 June
  2002, the matter was referred to the Public Prosecutor.

  The Ombudsman Commission provided the Public Prosecutor with a statement of reasons
  that placed the allegations of misconduct in office into three categories. These related
  to the leader’s alleged inequitable distribution of Rural Transport Development
  Programme funds in 1999, his alleged misapplication of K55, 000.00 of public money
  forming part of a fund under the control of the National Gaming Control Board in 1999
  and his alleged misapplication o K12, 491.60 of District Support Grant funds to complete
  the purchase of a motor vehicle registered in his name.

  It appeared that Mr Riyong:

   Received public money from the Gaming Board in the form of two
  cheques totaling K55,000.00 without lawful authority;

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• Page 30 of 33

•  Received public money from the District Support Grant discretionary
  component of the Rural Action Program funds for the Chuave Electorate
  in the form of a cheque for K12,491.60 without lawful authority;

   Dishonestly misappropriated public money, thereby committing offences
  under the Criminal Code; and

   Failed to disclose to the Ombudsman Commission the assets (including
  money and personal property) that had come into his possession and
  control as a result of receiving money from the Gaming Board and the
  District Support Grant.

  The Ombudsman Commission concluded that there was a prima facie case that Mr
  Riyong had omitted misconduct in office in that he:

   Place himself in a position in which he could have a conflict of interest or
  might be compromised when discharging his public and official duties
  contrary to Section 27 (1) (a) of the Constitution;

   Demeaned the leadership offices that he held contrary to Section 27 (1)
  (b) of the Constitution.

   Allowed his official and personal integrity to be called into question
  contrary to Section 27 (1) (c) of the Constitution;

   Endangered respect for and confidence in the integrity of government in
  Papua New Guinea contrary to Section 27 (1) (d) of the Constitution;

   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 as a leader
  contrary to Section 27 (2) of the Constitution;

   Knowingly gave a statement to the Ombudsman Commission that was
  false, misleading and incomplete in a material particular contrary to
  Section 4(6) of the Organic Law on the Duties and Responsibilities of
  Leadership;

   Directly accepted benefits by reason of his official position which had not
  been specifically authorized by law contrary to Section 5(1) of the
  Organic Law on the Duties and Responsibilities of Leaderships;

   Accepted benefits from a person (the Gaming Board ) without exemption
  from liability by the Ombudsman Commission contrary to Section 12 (1) of
  the Organic Law on the Duties and Responsibilities of Leadership; and

   Intentionally applied money forming part of a fund under the control of
  Papua New Guinea to purposes to which it could not lawfully be applied

  30

• Page 31 of 33

• contrary to Section 13 (a) of the Organic Law on the Duties and
  Responsibilities of Leadership

  31

• Page 32 of 33

• Attachment F

  EDITORIAL FROM THE NATIONAL NEWSPAPER PNG 15
  AUGUST 2006

  32

• Page 33 of 33

• 33