Leadership Tribunal verdict in the matter of Hon. Bryan Kramer MP

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    Leadership Tribunal verdict on allegations of misconduct in office by the Honourable Brian Kramer MP.

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  • PAPUA NEW GUINEA
    [In the Leadership Tribunal appointed under Section 27(2)(a) of
    the Organic
    Law on the Duties and Responsibilities of Leadership]
    AND:
    In the matter of a Reference by the Public Prosecutor under s.
    27(7) of the
    Organic Law on Duties and Responsibilities of Leadership
    AND:
    In the matter of the HONOURABLE BRYAN KRAMER MP.
    Member for Madang Open Electorate
    (The leader)

    Waigani: Justice Lawrence Kangwia ML (Chairman)
    Principal Magistrate Josephine Nidue (Member)
    Magistrate Edward Komia (Member)

    2023: 28 February
    Counsel:
    P. Kaiuwin & H. Roalokono & D. Kuvi for the Referrer
    M. Giruakonda & Sir Arnold Amet assisting the Leader.

    Constitutional Law — Leadership code – Leadership Tribunal — Role of
    tribunal –
    Onus and Standard of Proof — Member of National Parliament — Twelve
    (12)
    allegations of misconduct in office – Scandalising the Judiciary —
    Interference in
    police operational matters — Engaging associate companies to benefit
    from
    District Services Improvement programme (DSIP) funds –
    Misappropriation of
    (DSIP) funds to make payments to unauthorised purposes — Creating a
    structure
    within Madang District Development Authority without approval from
    Personnel Management — Abuse of power – whether evidence sufficient
    to
    sustain charges.

    1

    Cases cited; Hon Patrick Pruaitch v Chronox Manek (2009) N3903; Sir
    Michael
    Somare v Chronox Manek (2011) 5C1118; John Mua Nilkare v Ombudsman
    Commission (1995) N1344; Hon Solan Mirisim MP (2021) N9315; SCR No 2
    of
    1992 Re Leadership Code [1992] PNGLR 336; Re James Eki Mopio [1981]
    PNGLR
    416; Re: Michael Pondros, MP (1983) N425; Re Kedea Uru (1988-89)
    N425; SCR
    No 3 of 1984; SC Reference No 1 of 1978 in Re Leo Morgan [1978]
    PNGLR 460.

  • Page 2 of 61

  • Ex Parte Rowan CaHick and Joe Koroma (1985) PNGLR 67.
    Legislations cited:
    Constitution; s 27 (7) (e), 29 (1)
    Organic Law on Duties and Responsibilities of Leadership; s13, 17
    (d), 20 (4),
    s27 (2) & (7) (e), s17 (d), s20 (4), 27 (1) & s28.
    District Development Authority Act of 2014.
    Public Finance Management Act; DSIP Guidelines, Finance instructions
    National Procurement Act.

    INTRODUCTION
    BY THE TRIBUNAL: This Tribunal was appointed pursuant to s27 (7) (e)
    of the
    Organic Law on Duties and Responsibilities of Leadership (Organic
    Law) to
    enquire into certain allegations of misconduct in office by the
    Honourable Brian
    Kramer MP, (the leader) within the meaning of s 27 of the
    Constitution.

    The Ombudsman Commission originally referred 13 allegations of
    misconduct in
    office by the leader to the Public Prosecutor pursuant to s29 (1) of
    the
    Constitution and s 17 (d), s 20 (4) and s 27 (1) of the Organic Law
    respectively.
    On 30 September 2022 the Public Prosecutor pursuant to s 27 (2) of
    the Organic
    Law formally referred the Honourable Brian Kramer to the Leadership
    Tribunal
    by presenting 13 allegations. By operation of s 28 of the Organic
    Law the leader
    was suspended from official duties.

    On 14 October 2022 the Tribunal formally read the charges to the
    leader. He
    denied all allegations levelled against him. On 24 October 2022 the
    Public
    Prosecutor presented the statement of reasons accompanying the
    charges
    through the Chief Ombudsman Commissioner.

    2

    In the process of the hearing allegation 10 was discontinued for
    duplicity and
    the trial proceeded with 12 allegations. During the trial thirteen
    (13) witnesses
    were called by the referrer while the leader called three (3)
    witnesses.
    Each witness was subjected to examination, cross examination, and
    re-
    examination. At the conclusion of the trail proper the hearing was

  • Page 3 of 61

  • adjourned
    to 20 February 2023 for parties to prepare submissions on verdict.

    CONSTITUTIONAL ISSUE
    On the date fixed for submissions, the leader proposed that the
    Tribunal first
    consider a preliminary constitutional issue seeking to dismiss the
    entire
    proceeding. It was intimated that the threshold issue related to the
    failure by
    the Ombudsman Commission to afford him the right to be heard when it
    refused to provide him the relevant evidence sought to be relied on.
    He relied
    on the case of Hon Patrick Pruaitch v Chronox Manek (2009) N3903 and
    Sir
    Michael Somare v Chronox Manek (2011) SC1118 as conferring authority
    on
    the Tribunal to consider any question of interpretation and
    application of a
    Constitutional nature that may arise concerning the investigation by
    the
    Ombudsman Commission.
    In view of the necessity to accord the right to be heard at any
    stage of the
    proceeding the tribunal granted leave for the leader to incorporate
    the issue
    in its submissions on verdict to be determined separately. The
    effect of the
    grant of leave was that if the Preliminary issue was in favour of
    the leader the
    proceeding could stand dismissed. If the preliminary issue was
    denied the
    decision on verdict would be delivered.
    This is the decision from that preliminary issue. The leader’s
    submission was
    that by the refusal to provide him the evidence sought to be relied
    on by the
    Ombudsman Commission he was denied a fair and reasonable opportunity
    to
    respond to the allegations as intended by s 20 (3) of the Organic
    Law on Duties
    and Responsibilities of Leadership. If he had been provided the
    relevant
    evidence constituted of 20 volumes containing 8,488 pages of the
    alleged
    breaches, he would have offered an explanation or clarification that
    would
    have dispelled the allegations leading to a no prima facie case.
    3

    Without exercising due diligence and giving him the opportunity to
    be heard

  • Page 4 of 61

  • the Ombudsman Commission made a deliberate decision to refer him to
    the
    Public Prosecutor which was a breach of his Constitutional right,
    and the
    Tribunal should dismiss all charges.
    He relied on the cases of John Mua Nilkare v Ombudsman Commission
    (1995)
    N1344 and the findings by the Tribunal in the Hon Solon Mirisim MP
    (2021)
    N9315 as authority supporting his proposition.
    The referrer while contending that the leader was accorded the right
    to be
    heard by the Ombudsman Commission submitted that the issue raised
    was
    belated. The leader had the opportunity to raise it as a preliminary
    issue when
    the Tribunal hearing commenced and not after evidence had been
    called and
    completed. On the case of Solan Mirisim cited by the leader it was
    intimated
    that the circumstances of that case were different to the present
    application
    and not relevant.
    We agree with the law and case authority on the right to be heard. A
    right to
    be heard generally remains with a person to the grave so to speak.
    The right
    to be heard by a leader facing misconduct allegations must be
    accorded a fair
    hearing and given the opportunity to respond or challenge what is
    alleged.
    However, we have reservations on the view that a leader should be
    called in
    for an interview. An allegation by its very nature is an allegation
    yet to be
    proved and a leader should not be subjected to an interview akin to
    a felon in
    a criminal case at a police station. There is a basic presumption
    that Leaders
    are expected to know and do what is right and do it properly for
    without the
    necessary attributes, they should not hold leadership positions in
    the first
    place.
    In the present preliminary application by the leader, our view is
    consistent
    with the position of the referrer. The issue raised is far belated.
    It is in essence
    asking the tribunal to disband without considering the evidence
    already
    before it. There was nothing preventing the leader from raising the
    issue as a
    preliminary or competency issue when the Tribunal first commenced
    the

  • Page 5 of 61

  • hearing. The only preliminary issue that parties were invited to
    address at the
    commencement of hearing was the composition of the Tribunal members.

    4

    Even then, because the leader’s application involved Constitutional
    issues the
    proper remedy in our view lay in a judicial review as was in the
    Patrick Pruaitch
    case that the leader referred to.
    From the evidence before us the leader was not completely deprived
    of the
    right to be heard. The unchallenged evidence is that on 3rd
    December 2021
    the Ombudsman Commission served the leader the right to be heard.
    Annexed to the letter was the statement of reasons on the 13
    allegations in a
    291 paged document sought to be relied on. The leader on 4th
    December 2021
    by letter sought an extension of 21 days to respond and further
    requested
    copies of the evidence sought to be relied on. On 20 December 2021
    the
    Ombudsman Commission granted an additional 21 days and refused to
    provide any evidentiary documents.
    Because the leader was not provided the evidentiary documents, the
    leader
    deemed it unfair and saw no utility in responding to the right to be
    heard.
    When no response was received after the extension period lapsed the
    Ombudsman Commission on 14 February 2022 by letter notified the
    leader
    that it would refer the leader to the Public Prosecutor for not
    responding and
    made a deliberate finding of prima facie guilty of misconduct in
    office. On 15
    March 2022 the Ombudsman Commission referred the leader to the
    Public
    Prosecutor. The referral to the Public Prosecutor included the 20
    volumes of
    evidence that was refused to be served on the leader.
    This case was not a situation like the case of Solan Mirisim. In
    that case the
    right to be heard was given some years after the allegations arose
    and the
    leaders was referred to the public prosecutor 6 years thereafter.
    The dismissal
    by the Tribunal was based on denial of a fair hearing.
    In the present case the leader was not denied a fair hearing. He was
    accorded
    the opportunity to exercise his right to be heard by the Ombudsman
    Commission soon after it completed its investigation. The refusal to

  • Page 6 of 61

  • provide
    the documentary evidence did not extinguish his right to be heard.
    He was still
    possessed of the right. The assertion that had he been given the
    documentary
    evidence he would have provided a proper and better explanation
    which
    would have found a basis for a no prima facie case is in our view
    farfetched.
    He did not do that when he was accorded the right to be heard in the
    Tribunal.
    5

    He pleaded not guilty to the allegations when put to him. When he
    pleaded
    not guilty, he was deemed to have accepted what transpired thereby
    setting
    in motion the hearing proper to proceed.
    The trial proper proceeded therefrom without any challenge as to its
    propriety, competency, or lack of jurisdiction. Even then the leader
    still is
    possessed of the right to be heard if he is not satisfied by any
    determination
    the Tribunal makes.
    For those reasons we decline to grant the orders sought by the
    leader.
    We now deliver the unanimous decision of the Tribunal from the
    hearing proper.

    DECISION

    We start with the notion reposited in SCR No 2 of 1992 Re Leadership
    Code
    [1992] PNGLR 336 that the thrust of the Leadership Code is to
    preserve the
    people of this country from misconduct by its leaders. That private
    interest does
    not conflict with public responsibility as a leader. Leaders subject
    to the
    Leadership Code are those classified under s 26 of the Constitution.
    Leadership
    can be either earned or given. Either way the leader is accountable
    for any
    misconduct while in office.

    To safely hold a leader guilty of misconduct in office, factual
    allegations must be
    proved before a determination is made as to whether the proven facts
    constituted a breach of the duties enumerated under s 27 of the
    Constitution.

    In a Tribunal there is no legal onus to prove but the basic
    principle of law is that

  • Page 7 of 61

  • any person who alleges an illegal act, practice or conduct bears the
    burden of
    proving what he or she alleges, and Leadership Tribunals enjoy no
    exception to
    the grounded principle, the minimum being the practical onus to
    satisfy the
    principles of natural justice at every stage of the proceeding.

    By the very nature of the alleged misconduct in office created by
    the
    Constitution and implemented through the Organic Law on the Duties
    and
    Responsibilities of Leadership, it will require a high standard of
    proof.

    6

    Case law embrace the view that standard of proof in a leadership
    Tribunal must
    be high and nearer to the criminal standard of proof beyond
    reasonable doubt.
    This requirement is well founded in this jurisdiction as in the
    case of Re James
    Eki Mopio [1981] PNGLR 416 where the Court illuminated the
    requirement this
    way.
    “There is no absolute degree of standard of proof to be applied by
    the Leadership
    Tribunal. The Tribunal must be reasonably satisfied of the truth of
    the
    allegations, and it must.give full weight to the gravity of the
    misconduct in office
    by a person subject to the leadership code to the adverse
    consequences which
    may follow and to the duty to act judicially and in compliance of
    the principle of
    natural justice. Such satisfaction in matters so grave can never be
    achieved on a
    mere balance of probabilities”. (See also Re: Michael Pondros, MP
    (1983) N425;
    Re Kedea Uru (1988-89) N425)

    By the requirement for a high standard of proof the Tribunal is
    restricted to the
    allegations as pleaded in the referral by the Public Prosecutor.
    Unless an
    allegation is withdrawn by the referrer the tribunal must make a
    finding on each
    allegation.

    In the present case there is no dispute that between 27 July 2017
    and 27 July
    2022 the Hon Bryan Kramer MP was, a leader by virtue of s 26 (1)

  • Page 8 of 61

  • (c) & (d) of the
    Constitution in his capacity as member for Madang Open. By virtue
    of that office,
    he became the Chairman of the Madang District Development Authority
    (Authority) pursuant to s 12 (1) (a) of the District Development
    Authority Act
    (the Act). He was returned to the same leadership post in the 2022
    National
    Elections. He is therefore subject to the responsibilities of
    leadership prescribed
    under s 27 of the Constitution.

    From the 12 categories of allegations referred to the tribunal 07
    of them were
    alleged to have breached responsibilities of office under s 27 (5).
    (b) of the
    Constitution while 05 related to misappropriation of funds of Papua
    New Guinea
    under s 13 of the Organic Law. it was the duty of the Tribunal to
    enquire into
    and determine, whether the 12 categories of allegations breached
    obligations
    imposed by s 27 (5) (b) of the Constitution relating to
    responsibilities of office

    7

    and s 13 of the Organic Law which relates to misappropriation of
    funds of Papua
    New Guinea to constitute misconduct in office.

    Since s 27 (5) (b) of the Constitution subsumes all the preceding
    subsections, we
    reproduce the entire provision along with s 13 of the Organic Law.

    The provisions state as follows;
    27. Responsibilities of office.
    (1) A person to whom this Division applies has a duty to conduct
    himself in
    such a way, both in his public or official life and his private
    life, and in his
    associations with other persons, as not—
    (a) to place himself in a position in which he has or could have a
    conflict of
    interests or might be compromised when discharging his public or
    official duties;
    or
    (b) to demean his office or position; or
    (c) to allow his public or official integrity, or his personal
    integrity, to be called
    into question; or
    (d) to endanger or diminish respect for and confidence in the
    integrity of

  • Page 9 of 61

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

    (a) to ensure, as far as is within his lawful power, that his spouse
    and children
    and any other persons for whom he is responsible (whether morally,
    legally or by
    usage), including nominees, trustees, and agents, do not conduct
    themselves in
    a way that might be expected to give rise to doubt in the public
    mind as to his
    complying with his duties under this section; and
    (b) if necessary, to publicly disassociate himself from any activity
    or enterprise
    of any of his associates, or of a person referred to in paragraph
    (a), that might
    be expected to give rise to such a doubt.
    (4) The Ombudsman Commission or other authority prescribed for the
    purpose under Section 28 (further provisions) may, subject to this
    Division and to
    any Organic Law made for the purposes of this Division, give
    directions, either
    generally or in a particular case, to ensure the attainment of the
    objects of this
    section.
    (5) A person to whom this Division applies who-

    8

    (a) is convicted of an offence in respect of his office or position
    or in relation
    to the performance of his functions or duties; or
    (b) fails to comply with a direction under Subsection (4) or
    otherwise fails to
    carry out the obligations imposed by Subsections (1), (2) and (3),
    is guilty of
    misconduct in office.

    13. Misappropriation of funds of Papua New Guinea
    A person to whom this law applies who
    (a) Intentionally applies any money forming part of any fund under
    the
    control of Papua New Guinea to any purpose to which it cannot be
    lawfully

  • Page 10 of 61

  • applied; or
    (b) Intentionally agrees to any such application of any such
    monies.
    is guilty of misconduct in office.

    The combined effect of those provisions is to deter abuse of power
    and influence
    for personal benefit or gain as enunciated in SC Reference No 1 of
    1978 in Re Leo
    Morgan [1978] PNGLR 460. The extent of responsibilities and the type
    of
    conduct expected of a leader by s 27 in his public and personal life
    is high, wide,
    and varied. There is no precise definition of conduct. We adopt and
    endorse the
    opinion of the Tribunal in the Matter of Solan Mirisim MP (2021)
    N9315 which
    said, “In our opinion s. 27 is an all-encompassing law that covers
    all forms of
    leadership breaches constituting misconduct in office by leaders”.

    We now deal with the categories of allegations this way. Allegations
    1, 2, and 4
    will be considered together as they overlap and relate to the 03
    articles posted
    on the leader’s Facebook account. All the 3 allegations deem the
    leader as guilty
    of misconduct in office under s 27 (5) (b) of the Constitution.

    Allegation 1. Scandalising the Judiciary by posting articles on his
    Facebook
    account and insinuating a conflict of interest by the Hon. Sir Gibbs
    Salika, Chief
    Justice of Papua New Guinea.

    Under this category the referrer alleged that the leader failed to
    carry out
    obligations imposed by s 27 (1) of the Constitution by publishing
    articles
    insinuating a conflict of interest when he published these words; “A
    relevant
    point to note is that the Chief Justice was only recently appointed
    by O’Neill late
    last year.

    9

    In submissions the position of the referrer was that the leader
    being a person of
    intelligence while knowing that the Chief Justice was appointed by
    the National
    Executive Council, published an inaccurate fact that the Chief

  • Page 11 of 61

  • Justice was
    recently appointed by O’Neill. That his actions amounted to
    ridiculing and
    mocking the Chief Justice and disrespect for the judiciary which is
    dangerous to
    democracy.

    By writing and publishing those words it brought the Court or Judge
    into
    disrepute; lower the authority of the Court; lower the authority of
    the Chief
    Justice, interfere with due course of justice; interfere with lawful
    process of the
    Court; and undermine public confidence in the administration of
    justice.

    By doing so he demeaned his office, allowed his official and
    personal integrity to
    be called into question and endanger or diminish respect for and
    confidence in
    the integrity of government and therefore he was guilty of
    misconduct in office
    under s 27 (5) (b) of the Constitution.

    The leader while acknowledging that the statement was inaccurate
    contended
    that when properly understood it merely stated a constitutional fact
    that the
    Chief Justice was recently appointed by Prime Minister O’Neill’s
    government
    and cannot be said to be scandalous in any way whatsoever.

    That by merely publishing this constitutional fact he did not demean
    his office
    or position nor allow his personal integrity, or his personal
    integrity to be called
    into question within the meaning of s 27 (1) (b) of the
    Constitution. The
    publication was not scurrilous, abusive or cast any imputations
    against the
    judiciary or unduly spoken against a member of the judiciary or the
    judiciary
    generally.

    The main contention was that the charge cannot be sustained because
    scandalising is a form of Contempt of Court and a serious criminal
    offence under
    Common Law where the standard of proof was high and the requirement
    to
    prove the elements of the charge was not met rendering the
    allegation against
    him as speculations and assumptions.

    10

  • Page 12 of 61

  • Therefore, the charge should be dismissed. He referred to the SCR
    No 3 of 1984;
    Ex Parte Rowan Callick and Joe Koroma (1985) PNGLR 67 which cited
    various
    overseas cases as authority for his assertion that scandalising is
    a form of
    contempt.

    Allegation 2. Scandalising the Judiciary by posting articles on his
    Facebook
    account accusing Hon Peter O’Neill and his lawyers of filing a fake
    Warrant of
    Arrest to deceive and mislead the Court in the matter OS (JR) 720 of
    2019.

    Under this category the allegation was that the leader as Minister
    for Police
    scandalised the Court by posting on his Face Book account the
    following words.

    “What was not anticipated was that O’Neill and his lawyers would
    solicit
    assistance from the Chief Justice and desperate enough to submit
    fabricated
    documents to mislead the Court that the Warrant was defective as a
    means to
    obtain a stay order”.

    The submission by the referrer was that the publication was a
    malicious
    accusation against O’Neill and his lawyers and intended for the
    public to draw
    the conclusion that since O’Neill appointed the Chief Justice the
    request to the
    Chief Justice was for a return favour. That he had the intention to
    scandalise the
    Chief Justice and or the Judiciary when he published the following
    words on his
    Facebook account;

    “In response the Chief Justice hand-wrote on the same letter
    directing the judge
    to attend to the matter for a temporary stay until 21st October
    2019; Miviri
    please attend to this matter for a temporary stay until 21/10/19;
    following the
    directions issued by the CJ Miviri J vacated his earlier directions
    and agreed to
    hear O’Neill’s lawyers application at 3pm that afternoon; After
    hearing the
    application consistent with Os directions the judge granted an
    interim stay,

  • Page 13 of 61

  • restraining police from arresting and executing the warrant of
    arrest against
    0,Neill until Monday 21st October 2019; A relevant matter to not is
    that the Chief
    Justice was only recently appointed by O’Neill last years.”

    11

    That in the totality of the circumstances the articles the leader
    posted on
    Facebook had the effect of scandalising the judiciary as they were
    calculated to
    bring the Court or Judge into disrepute and lower the authority of
    the Chief
    Justice and the Court and undermine and endanger public confidence
    in the
    judiciary. By doing so the leader demeaned his office and positions,
    allowed his
    official integrity into question and endangered and diminished
    respect for and
    confidence in the integrity of government thereby being guilty of
    misconduct in
    office under s 27 (5) (b) of the Constitution.

    The leader while adopting his contentions under allegation 1
    intimated that the
    publication complained of were directed at the unethical and
    inappropriate
    conduct of Mr O’Neill’s lawyers and not against the Chief Justice.
    They did not
    scandalise the Court or bring the Court into disrepute, lower the
    authority of the
    chief Justice or interfere with the due course of justice. In like
    manner the
    publication did not demean his office and position or allow his
    official or
    personal integrity into question therefore he was not guilty of
    misconduct in
    office under s 27 (5) (b) of the Constitution.

    Category 4. Publicizing the complaint lodged against him by Hon Sir
    Gibbs Salika
    the Chief Justice of Papua New Guinea and posting it on the Facebook
    account.

    Under this category the referrer alleged that the leader failed to
    carry out
    obligations imposed by s 27 (1) of the Constitution when he
    published the letter
    of complaint by the Chief Justice to the Police Commissioner which
    was
    calculated to bring the integrity of the Chief Justice into

  • Page 14 of 61

  • disrepute, interfere with
    due course of justice, and undermine public confidence in the
    administration of
    justice thereby being guilty of misconduct in office under s 27 (5)
    (b) of the
    Constitution.

    The leader’s contention was that he did not use his office or
    position to obtain
    from the Commissioner of Police the letter by the Chief Justice nor
    publishes it.
    The letter had been publicized by one Nathan Liwago on WhatsApp
    platform. It
    was the leader’s assertion that even if he had published the letter,
    it would not
    amount to misconduct in office by any measure.

    12

    It was his further contention that the process from criminal
    complaints to
    sentence were supposed to be transparent and not confidential.
    Since the
    document consisted of a criminal complaint against him personally
    and as the
    most affected person, he had to publish it to let his electors in
    Madang know
    that a criminal complaint had been laid against him for transparency
    purposes.
    Therefore, the allegation was baseless, and should be dismissed.

    The approach we take is that the allegations will be considered in
    totality.

    The allegations shall be viewed objectively according to the
    standards and
    reactions of the reasonable person. It is irrelevant whether the
    Common Law
    recognises scandalising the judiciary as a form of contempt as
    intimated by the
    leader. The Common Law recognition relates to publications
    concerning ongoing
    proceedings because any publication regarding an ongoing proceeding
    is
    prohibited. The case that was the subject of the publications in
    this proceeding
    was a dead and done case.

    Our findings under categories 1, 2 and 4 are these. The evidence
    presented
    under the three categories of allegations show elaborate articles
    produced by
    the leader on his Facebook account in three parts on separate dates

  • Page 15 of 61

  • between
    2nd and 10 November 2019.

    The articles had its genesis from a criminal complaint laid by the
    leader against
    Peter O’Neill on 7 October 2019 for abuse of office for directing
    the payment of
    more than K300, 000 from the National Gaming Control Board which
    eventually
    helped his political nemesis Nixon Duban win the Madang Open
    Electorate
    under the auspices of upgrading Yagaum Lutheran Rural Hospital. Out
    of that
    transaction the Court of Disputed Returns found Duban guilty of
    bribery and
    undue influence and voided his election as member.

    Following the leader’s complaint, a Warrant of Arrest was necessary
    to bring
    O’Neill for questioning by police. Police obtained from the Waigani
    District Court
    a Warrant of Arrest against O’Neill.

    13

    On 16 October 2019, before police could execute the Warrant of
    Arrest, O’Neill
    through Nivage Lawyers sought an urgent application in the National
    Court for
    orders to stay the Warrant of Arrest from being executed. The reason
    for the
    application by O’Neill was to seek Judicial Review of the decision
    to issue the
    Warrant of Arrest which was couched as constituting patent defects.
    The
    application ended up with Hon Justice Miviri twice.

    On both occasions, Hon Justice Miviri fixed 21 October 2019 as the
    date for
    hearing the application inter-parte. Not satisfied with Hon Justice
    Miviri’s
    decision and fearing imminent arrest, Peter O’Neill’s lawyer wrote
    to the
    Associate to the Chief Justice Togi Maniawa seeking an urgent
    interim stay.
    That letter was forwarded to the Chief Justice. Upon receipt of that
    letter the
    Hon Chief Justice by notation on the same letter wrote the following
    words:
    “Miviri J. Please attend to this matter for a temporary stay until
    21/10/19”.

  • Page 16 of 61

  • Following that notation Hon Justice Miviri heard the application and
    granted
    orders restraining police from executing the Warrant of Arrest
    pending
    determination of the substantive proceedings. Peter O’Neill was not
    arrested.
    On the return date police withdrew the warrant of arrest and O’Neill
    was not
    charged.

    After those occurrences, the leader on 2r November 2019 commenced
    posting
    on his Facebook account, articles containing events and comments
    leading to
    and surrounding the stay order. The articles posted in three parts
    were entitled
    “O’Neill flees country as National Court dismisses his case
    preventing arrest”.

    The articles alleged to be scandalous started like this.

    “Following the directions issued by the Chief Justice, Judge Miviri
    vacated his
    earlier directions and agreed to hear O’Neill’s lawyers’ application
    at 3 pm that
    afternoon. After hearing the application, consistent with CJ’s
    directions the Judge
    granted an interim stay, restraining police from arresting and
    executing the
    Warrant of Arrest against O’Neill until Monday 21st October 2019.

    The words alleged to be scandalous are these;
    14

    “A relevant matter to note is that the Chief Justice was only
    recently appointed
    by O’Neill late last year”. And later;
    “What was not anticipated was that O’Neill and his lawyers would
    solicit
    assistance from the Chief Justice and desperate enough to submit
    fabricated
    documents to mislead the Court that the Warrant was defective as a
    means to
    obtain a stay order”.

    Being aggrieved by the articles the Chief Justice wrote a letter to
    the acting
    Commissioner of Police, David Manning to charge the leader under the
    Summary Offences Act and possibly the Cybercrimes Act. He also wrote
    to the
    Ombudsman Commission. The leader upon receipt of a copy of the
    letter posted
    the entire letter on his Facebook account. Thereafter numerous

  • Page 17 of 61

  • comments and
    responses from the public were published. The Ombudsman Commission
    investigated and referred the leader to the Public Prosecutor under
    the three
    categories of allegations.

    We commence our finding with the view that in a democracy like ours,
    freedom
    of speech generally is a noble calling. The Constitution under s 46
    recognises
    that proposition as freedom of expression. However, such freedom
    must be
    exercised with caution and restraint to avoid adverse consequences.
    Our findings of the primary facts from the Facebook articles are
    these. The
    heading to the Facebook articles stated, “O’Neill flees country as
    National Court
    dismisses his case preventing arrest”. The leader’s assertion that
    the National
    Court dismissed O’Neill’s case is far from the truth. There is no
    evidence that the
    National Court dismissed O’Neill’s case.
    There is also no evidence that O’Neill was charged with any offence
    that was
    dismissed. What is in evidence is that the Warrant of Arrest was set
    aside by
    court order. It is a misstatement and a distortion of facts by the
    leader to assert
    in the Facebook articles that O’Neill’s case was dismissed.
    Secondly, from the information before us there is no evidence that
    O’Neill and
    his lawyer solicited any assistance from the Chief Justice. This
    position was
    enhanced in evidence during cross examination of George Lau the
    Lawyer acting
    for O’Neill, that communication with the Chief Justice was a “no go”
    for a lawyer.

    15

    The only evidence on record is that the lawyer for O’Neill wrote to
    the associate
    to Chief Justice requesting an urgent stay. That mode of
    communication is the
    norm for Court record purposes as the National Court is a Court of
    record.
    Thirdly, there is no evidence of a collusion by the Chief Justice
    with Greg
    Shepard’s Law firm where the Chief Justice’s daughter worked. The
    undisputed
    evidence is that Nivage Lawyers appeared in court after briefing out
    from Greg
    Shepard’s Law Firm relating to the application for a stay order

  • Page 18 of 61

  • which is a normal
    practice among lawyers.
    Finally, there is no evidence of a defective or fake Warrant of
    Arrest as alleged.
    There is also no evidence that O’Neill and his lawyer used a fake
    Warrant of
    Arrest to obtain the stay order.
    However, there is evidence of a Warrant of Arrest that was tampered
    with. The
    oral evidence by Senior Constable Kila Tali who applied for the
    Warrant of Arrest
    told the Tribunal that he tampered with the copy given to him by
    ticking it which
    was not ticked when he obtained it from the Court house.
    It was his evidence that he ticked the Warrant of Arrest to identify
    the reason
    for the arrest which was lacking on the copy given to him. His
    further evidence
    was that he withdrew the warrant after the file was removed from him
    by the
    police hierarchy.
    The evidence by Serah Amet the Clerk of the District Court who
    prepared the
    Warrant of Arrest was that the copy she kept at the District Court
    was the only
    correct copy and without a tick. When questioned on the signatures
    being
    slightly different her evidence was that two copies of the warrant
    were
    produced, and the Magistrate signed the two copies separately. There
    was no
    photocopy of a signed Warrant of Arrest.
    Our finding from that evidence is that if there was in fact a
    defective or fake
    warrant, then the copy held by SC Tali which the leader was privy to
    be the fake
    one. SC Tali had tampered with it.
    Our conclusion therefrom is that the leader had a vested interest in
    the
    complaint against Peter O’Neill. He was the complainant. The
    complaint was
    over official corruption and other irregularities in sourcing and
    expenditure of
    public funding from the Gaming Control Board for Yagaum Hospital in
    Madang.
    16

    He became a victim of those irregularities and could not get elected
    sooner.
    After his return as duly elected Member of Parliament for Madang
    Open, he felt
    duty bound to right the wrongdoers. No one else could do it for his,
    people who

  • Page 19 of 61

  • missed out on proper service delivery. He laid a formal complaint
    with police.
    The police reacted to his complaint and obtained a Warrant of Arrest
    against
    O’Neill who had directed the procurement of funds from the Gaming
    Control
    Board for Yagaum Hospital. There was nothing improper on the part of
    the
    leader in the laying of the complaint.
    What turned out to be improper was what happened after the execution
    of the
    Warrant of Arrest was frustrated, and O’Neill not arrested. The
    leader was not
    pleased by what transpired. Without restraint and caution expected
    of a leader
    he let loose his self-control in a subtle way to portray his
    dissatisfaction by
    publishing articles the subject of these allegations. In the process
    the leader
    further posted the letter of complaint the Chief Justice sent to the
    Police
    Commissioner.
    The document that later became controversial was brought to the
    attention of
    the Chief Justice by his associate Togi Maniawa. It was a letter
    requesting a
    hearing of an application by O’Neill’s lawyer for a temporary stay
    of the Warrant
    of Arrest to the date set by Justice Miviri. On that letter the Hon
    Chief Justice
    wrote “Miviri J. Please attend to this matter for a temporary stay
    until
    21/10/19”.

    From a reading of the notation by the Chief Justice it was in our
    view not a
    direction to the trial Judge as asserted in the article by the
    leader. It was a
    misstatement by the leader of the facts to say that the grant of
    stay by Justice
    Miviri was consistent with directions by the Chief Justice. The
    Chief Justice did
    not issue directions or use the word direct to Justice Miviri. The
    use of the word
    “direct” would connote a compulsion to act. On the converse the
    enabling words
    “please attend to this matter” exemplifies a request more than a
    direction. It
    can also be interpreted as requesting Justice Miviri to reconsider
    his earlier
    position. It was open to Justice Miviri to reconsider or stick to
    his earlier stance.
    He chose to reconsider and hear the application. We cannot deem the
    notation

  • Page 20 of 61

  • by the Chief justice as a direction as suggested by the leader.

    17

    There was nothing unusual, sinister, or intrusive in the way the
    Chief Justice
    made the request to Justice Miviri to attend to the matter for a
    temporary stay.
    The date suggested by the Chief Justice was consistent with the date
    set by
    Justice Miviri.

    The Chief Justice was entitled to do what he did as head of the
    Judiciary when
    the decision of Justice Miviri was a decision from chambers and not
    a Court
    Order. That proposition was affirmed in evidence by the Chief
    Justice himself
    and the former Chief Justice Sir Arnold Amet that chamber directions
    are issued.
    The difference between a decision from chambers and a Court Order
    was also
    distinguished in evidence by the Hon Chief Justice and Sir Arnold
    Amet that a
    Court Order is subject to an appeal to the higher Court while a
    direction from
    chambers is more an administrative convenience. We add here that
    even though
    a direction from chambers of a Judge would not be subject to an
    appeal, any
    person who was so aggrieved by any such direction, could seek
    Judicial Review
    of that direction as an administrative decision. It is still open to
    challenge.

    The evidence of the Chief Justice was that he could not direct a
    judge to make
    orders. It was up to the Trial Judge to independently determine
    whether to grant
    or refuse the application as it is done in the usual course of
    judicial
    determinations. Justice Miviri deposed to doing just that. He told
    the tribunal
    that he made his own independent decision.

    We also find no evidence that O’Neill appointed the Chief Justice.
    The Chief
    Justice gave evidence that he was appointed by the National
    Executive Council
    on 13 November 2018 from a shortlist of 5 names of other senior
    Judges. The
    appointment process was further affirmed by the former Chief Justice
    Sir Arnold

  • Page 21 of 61

  • Amet that by law it is the National Executive Council that appoints
    the Chief
    Justice. That evidence has not been discredited.

    There may be a hint of a conflict of interest by the Chief justice
    under two
    circumstances. The obvious one was that at the time the Chief
    Justice was
    appointed, Hon Peter O’Neill was the Prime Minister and by the
    office held, he
    was the Chairman of the National Executive Council which was the
    appointing
    authority.
    18

    There is also the evidence that Peter O’Neill directed Tom Kulunga,
    then
    Commissioner of Police to approach Sir Gibbs Salika personally on an
    Arrest of
    former Chief Justice Sir Salamo injia.

    However, the publication by the leader in the Facebook article that
    the Chief
    Justice was recently appointed by O’Neill is an inaccurate
    statement, distorted
    and far from the truth. It is highly irregular and improper for the
    leader to
    assume that a reader would interpret the words the way he meant it
    to be
    interpreted. He was intelligent enough to distinguish facts from
    untruths.

    The Chief Justice is the head of the third arm of government and the
    appointment to such important position cannot be done by a single
    person, even
    the Prime minister. By operation of s 169 (2) of the Constitution,
    the National
    Executive Council is entrusted with the authority to appoint the
    Chief Justice by
    advice to the Head of State. There is no other way. It seems the
    leader was
    unaware of this process by his publication. If he was aware, then he
    chose to
    interpret it his way. The publication of distorted and untruths
    renders any hint
    of a conflict of interest by the Chief Justice nugatory.

    Given those facts it is in our view farfetched and beyond the bounds
    of
    possibility to insinuate a conflict of interest or corruption in the
    judiciary in
    circumstances where the Chief Justice requested Justice Miviri to
    “Please attend

  • Page 22 of 61

  • to this matter” as a return favour to O’Neill for appointing the
    Chief Justice.

    On the allegation of deceiving and misleading the Court by O’Neill
    and his
    lawyers, two copies of the warrants were published, and the leader
    compared
    them on the Facebook.

    We are of the view that even though the words under this category of
    allegation
    were directed at O’Neill and his lawyers, by publishing that a fake
    Warrant of
    Arrest was used to deceive and mislead the Court to obtain a Court
    Order, were
    factually wrong and far from the truth.

    19

    The copies posted on the leaders Facebook account were both correct
    copies.
    None was fake. The Warrant of Arrest that could be described as fake
    was the
    copy tampered with a tick, by the Police Informant Senior Constable
    Kila Tali.

    Secondly, there was no determination by the Court on the Warrant of
    Arrest.
    Whether the Warrant of Arrest was fake or had substance was not
    determined.
    Only a restraining order was given. To allege that the Court Order
    for a stay was
    obtained by using a fake document was also factually incorrect. The
    evidence is
    that the warrant that the police wanted to execute was the tampered
    one. The
    correct copy was in the Court file which O’Neill’s lawyer relied on.
    The
    application to set aside the Warrant was proper because the two
    copies did not
    match, one with a tick and the other without a tick.

    The substantive application by O’Neill for judicial review was never
    dealt with
    by the Court. The judiciary was distanced from the allegation of the
    fake warrant
    when the Warrant of Arrest was withdrawn by SC Kila Tali being the
    Police
    Informant.

    We find that the articles published in the Facebook pages were not

  • Page 23 of 61

  • calculated
    to interfere with the due course of justice or lawful process of the
    Court. The
    published articles related to a matter that was completed, dead and
    done. The
    articles did not relate to a matter that was ongoing from which
    interference
    could be inferred or bring the Court or Judge into disrepute by such
    publication.

    On the allegation of publishing on Facebook, the letter of complaint
    by the Chief
    Justice, like the Leader, the Chief Justice was entitled to write to
    the Police
    Commissioner because it would have been inappropriate and demeaning
    of his
    office to go stand behind the counter at a police station to lay his
    complaint. Be
    that as it may, the leader was also entitled to react the way he did
    as the most
    affected person by the letter of complaint.
    Our conclusions from the series of articles and the publication of
    the letter by
    the Chief Justice by the leader is that they constituted
    unsubstantiated facts and
    unverified conclusions. The leader published them to enhance his
    personal
    interest more than for the public good as the leader asserts.

    20

    The publications were also intended for the victims of his
    unrestrained
    utterances to suffer any consequence that followed.
    By those findings the issue now is whether the leader has committed
    a breach
    of a duty alleged under s 27 (5) (b) of the Constitution. This
    provision is wide in
    scope and encompasses all the subsections before it. It covers
    directions under
    subsection (4) and obligations under subsections (1), (2) & (3).

    We deal with the issue this way. Where the specific breach alleged
    is not proved
    but the evidence discloses a breach of another duty imposed by s 27
    of the
    Constitution the tribunal will be at liberty to exercise its
    discretion to hold that
    a duty not specifically charged was breached. The reason for that
    is simple. The
    provision alleged to have been breached under s 27 (5) (b) subsumes
    all
    preceding subsections. It was intended to cover a broad range of

  • Page 24 of 61

  • misconduct
    collectively and not individually.

    To consider whether a breach under s 27 has been committed we shall
    determine the respective subsections through an elimination process.

    Subsection 4 relates to directions from the Ombudsman Commission and
    does
    not apply to these allegations. Subsections 2 relates to use of
    office for personal
    gain and does not apply to these allegations. Subsection 3 relates
    to conduct of
    spouses, children and associates and does not apply to these
    allegations.
    Subsection 5 (a) relates to convictions and does not apply to these
    allegations.

    After the eliminations the only provision remaining is subsection
    (1).
    This provision is subsumed under s 27 (5) (b) which the referrer
    alleges was
    breached by the leader. If an allegation cannot be charged under
    subsection (1)
    alone, it can be charged under s 27 (5) (b). They operate
    interchangeably.

    Under s 27 (1) (a) the requirement is that a leader must not place
    himself in a
    conflict-of-interest situation. The utterances in the Facebook
    account do not
    constitute a conflict-of-interest by the leader and does not apply
    to the
    circumstances relating to scandalising the judiciary.

    21

    Under s 27 (1) (b) a leader must conduct himself so as not to demean
    his office.
    Even though the materials on the Face book platform do not
    constitute an
    official press release or a function related to his official duties
    as Minister for
    Police complaining about Court processes in the media was going too
    far. The
    standing practice was that the police and the Judiciary work at
    arm’s length and
    not attack each other at will. He as Minister for Police had to lead
    in that respect
    and protect that relationship. The leader is deemed to have demeaned
    his office
    by publishing articles of person interest in conflict with his
    position as Minister

  • Page 25 of 61

  • for Police.

    Under s 27 (1) (c) (d) the requirements are that a leader must not
    allow his
    official or personal integrity to be called into question. We adopt
    what we have
    just said above. The articles in the Facebook although personal,
    were published
    when he was a leader, being the Minister for Police and Member of
    Parliament
    representing the people of Madang Electorate. His personal interests
    from a by-
    product of a vendetta against O’Neill for supporting his political
    nemesis Nixon
    Duban to win the election clouded decorum and sound judgement. After
    winning the 2017 National Election the leader went in pursuit of
    killing the goose
    that lay the golden egg so to speak.

    Even though the articles may not have been intended to scandalise
    the judiciary
    we cannot find the leaders comments as factual and fair in
    circumstances where
    the purported facts were in fact misstatements and inaccurate.

    He failed to exercise restraint as a leader. He failed to warn
    himself of the
    adverse consequences of breeding negative perception on the
    judiciary by an
    exploitable and deceivable public. There were proper processes in
    place that the
    leader could have utilised instead of going too low to let a
    gullible public pass
    judgement.

    Even though the bulk of the population in this country have no
    access to
    Facebook the numerous responses to the leader’s articles and the
    publication
    of the letter by the Chief Justice from those persons who were
    connected to
    Facebook attest to the reactions and perceptions from the public.

    22

    The responses tendered into evidence were varied. We reproduce some
    of them
    verbatim.
    Some of the responses insinuated corruption at the highest level
    where
    wrongdoing was least expected e.g. (It shows all Court system is
    corrupt around
    PNG); (Its embarrassing for a man known as chief justice to be

  • Page 26 of 61

  • involved in
    corruption). (Appoint some mature and man of vision to head the
    judiciary harm
    in the country.

    Other comments were susceptible to the veracity of the alleged
    wrongdoing by
    the Chief Justice. e.g. (Hope there is evidence on your post
    inciting trouble or
    causing ill feeling to people. Otherwise, the 0 should be thankful
    that you have
    help expose a weakness in the judicial process and he should focus
    on improving
    and making sure that does not happen again); (Look at all the
    mistakes on the
    complaint against Police Minister Bryan Kramer… Do we still think
    this letter
    originally came from the Chief Justice of Papua New Guinea?); (This
    is fake letter
    by someone who have been bribed by someone who is heavily involved
    in those
    corrupt deals”.

    There were also comments which portrayed the leader as a demigod
    against
    corruption. e.g (BK stood the test of times against Goliath (in
    power) and still
    persevere. Nothing is new. Only a new Goliath).
    Thumbs up Bryan Kramer for your strong standing in fighting
    corruption in PNG.
    You are the true patriotic leader of PNG to ‘Take back PNG” from
    such colluded
    corrupt officials.
    My champion my hero God be with you).

    Other commentators splashed accusations on the Chief justice. E.G (0
    should
    really stay out of issues like this n let judges do their work bkos
    he will only loose
    his integrity); 0 and PO can manipulate the system with money bags
    as usual);
    The pay you receive does not satisfy you and your family); “if the
    Chief Justice’s
    daughter was working with Greg Shepard’s law firm and if so should
    CJ be
    involved in cases where the law firm is engaged. Conflict of
    interest?” Cl tryina
    save his own arse for lack of a better word); (In the history of
    Papua new Guinea
    this 0 is impatient and it seems like he directly involved with Onil
    that why he
    trinna coverup on this matter).
    23

  • Page 27 of 61

  • The responses to the leader’s articles in total when viewed
    objectively are at
    best disgraceful, shocking, insensitive and even ridiculous.

    These types of utterances could not have been ignited had the leader
    as author
    of the articles exercised restraint and refrained from publishing
    them. Instead,
    the leader let loose his self- control in a subtle way and allowed
    his personal
    interest to take precedence. Apart from personal satisfaction, what
    good
    outcome was there to be gained by anyone else from the publication
    of
    unreserved and factually untrue utterances remains a mystery.

    The result of his conduct was that public confidence in the
    judiciary overall was
    denigrated. It gave birth to negative perception and disrespect for
    the judiciary
    leading to scandalising the judiciary, a government institution
    bestowed with a
    high degree of trust.

    By his conduct in publishing factually untrue statements it allowed
    his public and
    personal integrity into question as to whether he was a leader of
    truth thereby
    demeaning his office as Minister for Police and position as a
    leader.

    We find that the leader is caught by s 27 (1) (c) of the Organic Law
    on Duties and
    Responsibilities of Leadership. Even though the leader was not
    charged directly
    under subsection (1) (c), subsection (5) (b) under which the leader
    was charged
    is wide, and it covers all the responsibilities imposed on a leader
    which includes
    subsection (1) (c).

    The remaining provision is section 27 (1) (d). The requirement under
    this section
    is that a leader must conduct himself so as not to endanger or
    diminish respect
    for and confidence in the integrity of government in Papua New
    Guinea.
    “Government” is wide in scope and covers all government entities and
    instrumentalities which includes the judiciary. Even though the
    articles were not
    recognised official media releases, they related to official
    government functions
    the judiciary was involved in. We adopt what we said under

  • Page 28 of 61

  • subsection 1 (c) in
    this regard.

    24

    Insinuation of a conflict of interest by the ChiefJustice in the
    performance of his
    official functions is not supported by evidence. There is no
    evidence that O’Neill
    or his lawyer solicited assistance from the Chief justice apart
    from writing a
    letter requesting a hearing. O’Neill’s lawyer served the interest
    of his client as is
    the normal duty of lawyers in this country and other countries that
    ascribe to
    the rule of law.

    From the evidence before us two extremes of leadership are
    displayed. O’Neill
    being a leader challenged the Warrant of Arrest as defective
    through the normal
    judicial process which is available to one and all. It is ironic
    that the Leader also
    challenged, a Warrant of Arrest as fake on Facebook which is also
    available to
    the public.

    There was nothing untoward in the approach taken by O’Neill’s lawyer
    to pursue
    his client’s interest in Court. On the converse, the articles on
    Facebook
    denigrated the high respect and confidence the public has of the
    Judiciary. It
    created doubts as to whether the last bastion of hope is wrought
    with corruption
    which the judiciary is supposed to protect and defend.

    The varying responses to the articles on Facebook attest to this.
    The Facebook
    articles also created doubts in the minds of the learned members of
    the
    community on the independence of the judiciary a government body
    when the
    Chief Justice is alleged to have instructed another judge to issue
    orders. The
    foundation of the judiciary is the independence of the judge in
    decision making.

    By insinuating that the Chief Justice directed another judge (which
    was factually
    untrue) to make a certain decision impinges substantially on the
    independence

  • Page 29 of 61

  • of the judiciary thereby demeaning the integrity of the Chief
    Justice, lowering
    his authority, endanger public confidence in the administration of
    justice and
    scandalising the judiciary overall amounting to misconduct in office
    under s 27
    (5) (b) of the Constitution.

    The allegations relating to scandalising the judiciary through
    articles on the
    leaders Facebook account have been proved to the required standard.

    25

    We find the leader guilty of misconduct in office pursuant to s 27
    (5) (b) of the
    Constitution for allegations 1 and 2.

    On the allegation under category 4 relating to the letter of
    criminal complaint
    by the Chief Justice, there was an element of undermining public
    confidence in
    the administration of justice in the context that, the Chief justice
    who was least
    expected to be in trouble with the law had joined the que and become
    another
    complainant.

    Despite that we do not find any dishonesty or conflict of interest
    on the part of
    the leader in obtaining and publishing the letter on Facebook. The
    leader was
    the person most affected by the letter, and he was entitled to
    react. Secondly,
    the letter by the Chief Justice if properly attended to by police as
    requested, it
    would have been in the public domain anyway.
    We find the leader not guilty under category 4 of the allegations.

    Allegation 3. Involvement and interference in police operational
    matters
    resulting in the termination of Mr Paul Nii Director Legal Services.

    Under this category the referrer alleged that the leader interfered
    in police
    operational matters as then Minister for Police in the termination
    of one Paul
    Nil who was then the Director of Police Legal Services; that the
    removal was
    made after Mr Nii provided legal advice against the arrest of Peter
    O’Neill which
    did not go down well with the leader’s interests because the arrest
    of Peter

  • Page 30 of 61

  • O’Neil arose out of a complaint by the leader.

    The leader denied any involvement or interference in the termination
    of Mr. Nii.
    His contention was that the termination was for abuse of a hire car
    and he was
    not guilty of misconduct in office under s 27 (5) (b) of the
    Constitution.

    The Law under s 197(2) of the Constitution is that a member of the
    police force
    is not subject to direction or control by anyone outside the police
    force. This
    includes the Minister responsible for Police.

    26

    The evidence under this allegation came from the victim of the
    termination, now
    Magistrate Paul Nii who was at the relevant time Director Legal
    services in the
    Royal Papua New Guinea Constabulary. His evidence briefly was of
    being in the
    Police Commissioner’s office when the leader had a discussion with
    the then
    Acting Commissioner of Police over a complaint by the leader against
    Peter
    O’Neill. From that discussion he was directed to do a file search on
    an application
    by O’Neill to set aside a Warrant of Arrest.

    While returning from the search the Acting Commissioner of Police
    directed him
    to go to Boroko Police Station to give advice on a Court Order
    O’Neill had
    obtained to set aside a Warrant of Arrest because the Police at
    Boroko were
    divided on the Court Order. He gave advice against the arrest of
    O’Neill despite
    the Police Commissioner’s insistence to give legal clearance for
    police to arrest
    O’Neill. A second opinion on the Court Order gave the same advice
    and O’Neill
    was released.

    On 27 December 2019 he was suspended by a show cause notice for
    abuse of
    office and breach of contract relating to the use of two motor
    vehicles at Police
    Department expense and eventually terminated.

    Mr Nii in evidence denied the suspension as related to the hire car.

  • Page 31 of 61

  • His assertion
    was that he was allowed to use the vehicle by the Managing Director
    Nelson
    Tengi while his suspension was upon pressure by the leader for
    giving legal
    advice against the arrest of O’Neill. He relied on a letter by Mr
    Nelson Yarka the
    accountant for Lama Rent A Car as supporting his assertion on the
    hire car.

    According to the letter from Mr. Daniel Yarka the, the vehicle in
    question was
    hired on a retainer basis by the Police Department commencing 22
    April 2018
    for 38 months to be invoiced on 6 monthly bases. When Mr Nii went to
    return
    the vehicle in April 2019, he was allowed to keep the vehicle by the
    Managing
    Director for reasons he did not know.

    The letter was confusing as it portrayed a scenario where Mr. Nii
    had legitimate
    use of the vehicle as allowed by the Managing Director and Police
    Department
    could still pay the rates for hire.
    27

    A simple calculation on the retainer shows that 18 months retainer
    period would
    have lapsed on 22 June 2021. Mr Nii had custody of the hired vehicle
    in 2019
    while it was still under the retainer by the Police Department. Our
    conclusion is
    that the suspension was for the unauthorised use of the hired
    vehicle and none
    other.

    We now revert to the substantive allegation that the leader
    interfered in police
    operational matters to have Mr Nii terminated.

    The oral evidence of Mr Nil was that the Commissioner of Police
    seemed to be
    under pressure when he directed him so many times to give clearance
    for the
    arrest of O’Neill. He was of the firm view that the leader pressured
    the
    Commissioner to give legal clearance for the arrest of O’Neill after
    their earlier
    meeting in the Police Commissioner’s office.
    When asked by counsel to verify “so many times” he was unable to
    give a
    specific number. We consider this piece of evidence by Mr Nii as

  • Page 32 of 61

  • grossly
    exaggerated and unsubstantiated.

    The other evidence on this allegation was from the Facebook
    articles, where the
    leader referred to interference by a certain police officer who
    vigorously
    opposed the arrest of O’Neill insisting that the Court Order forbade
    police from
    arresting him. The alleged police officer was not named in the
    Facebook articles.

    We find as a fact that political interference in operational matters
    of the Police
    Force had occurred. Two instances signify our findings.

    In the first instance there is evidence that former Commissioner of
    Police Tom
    Kulunga and the then Commander Special Operations, David Manning
    went to
    the private residence of the former Deputy Chief Justice Sir Gibbs
    Salika and had
    discussions on a purported Arrest of the former Chief Justice Sir
    Salamo I njia at
    the behest of the former Prime Minister Peter O’Neill.

    In the second instance the evidence before us is that the leader, as
    then Minister
    for Police held discussions with the Commissioner of Police on the
    Arrest of
    former Prime Minister O’Neill from his personal complaint.
    28

    These are testaments of direct political interference in police
    operational
    matters by leaders. Arrest of persons is an operational matter for
    the police to
    the exclusion of all of us. It is a breach of and a blatant
    disregard of the
    constitutional directive under s 197 (2) which restrains all and
    sundry from
    interfering with operational matters of the Police Force.

    Even though there was an element of interference and a conflict of
    interest by
    the leader in police operational matters concerning his personal
    complaint, we
    cannot safely connect those observations to interference by the
    leader in the
    suspension and termination of Mr. Nii. We find the leader not guilty
    of this
    allegation.

  • Page 33 of 61

  • The balance of the allegations relates to the District Development
    Authority
    (Authority) and its enabling Act. We propose to make general
    observations on
    relevant provisions of the Act before proceeding with the
    allegations.

    We start with the standing notion that laws are there to be obeyed
    by one and
    all. Where there is a breach or a disobedience to any law, sanctions
    naturally
    follow. District Development Authority (amendment) Act of 2014 (the
    Act) is one
    such law and enjoys no exception.

    The Authority is by statute pursuant to s 4 (1) (a) of the Act a
    corporate body. It
    does not require certification by the Investment Promotion Authority
    to be
    recognised as a company. It replaced the functions of the former
    Joint District
    Planning & Budget Priorities Committee (JDPBPC) pursuant to s 33A of
    the
    Organic Law on Provincial and Local Level Government Act and comes
    under the
    umbrella of the Department of Provincial and Local Level
    Governments.

    It has a board constituted by the Open Member as charman and all the
    presidents of the Local Level Governments in the District. The
    Chairman
    appoints three persons representing the community.

    By operation of s22 the District Administrator (DA) who is a public
    servant and
    subject to the Department of Personnel Management, becomes the Chief
    Executive Officer (CEO) of the Authority.
    29

    He/she is the only person possessed of an overlapping responsibility
    as DA of
    the District and the CEO of the Authority. The incumbent DA requires
    no specific
    appointment as CEO because he is already recognised by s 22 as the
    CEO to the
    Authority.

    Our reading of the Act is that the setting up of the Authority was a
    change in the
    regime of centralized funding control to be closer to the district.
    It was intended
    to facilitate an effective and coordinated approach to development
    and service

  • Page 34 of 61

  • delivery in each District and nothing else.

    Specific functions provided under s 5 (b) were to develop, build,
    repair, improve
    and maintain roads and other infrastructure only. The Authority also
    possessed
    an underlying power to do all that are necessary or convenient to be
    done in the
    implementation of the functions. Other functions specified under s 5
    only
    compliment the development and service delivery requirements.

    All functions of service delivery are as prescribed by the Act or by
    regulation
    accompanying the Act or by determinations from the portfolio
    minister
    pursuant to s 6, or directions by the Minister pursuant to s 20 of
    the Act. These
    requirements are mandatory. At the time of the allegations there was
    no
    regulation or any Ministerial determination or direction in force.
    The Act stood
    alone.

    One of the functions of service delivery is to approve disbursement
    of
    appropriated funding under the District Support Grants (DSG) and
    District
    Services Improvement Programme (DSIP) funds. Apart from these
    appropriated
    funds, the Authority can receive funding from other sources like
    grants and
    donations if any. All these funds are paid into the district
    treasury and
    expenditures recorded accordingly in the Provincial Government
    Accounting
    System (PGAS) as they are all deemed public funds.

    All financial matters for the Authority are subject to part VIII of
    the Public
    Finance Management Act 1995 and according to financial instructions
    and
    guidelines issued from time to time.

    30

    The established practice in financial matters is that the District
    Finance Office or
    District Treasury these days raises the requisition and General
    Expenses for
    invoices submitted to it after the initial approval is given by the
    board through
    the Chairman. The DA as section 32 officer authorises payment and

  • Page 35 of 61

  • expenditures are recorded accordingly in the PGAS.

    In the present case soon after the Leader was elected as MP for
    Madang in the
    2017 National Elections, to improve service delivery for the
    district, he
    orchestrated the creation of Madang Ward Project office and
    established a new
    structure to administer and implement projects and other services
    from an
    office rented at Divine Word University. A secretariat was
    established, and staff
    were employed to implement the functions of the Ward Project
    Office.

    The leader further orchestrated the incorporation of Madang Ward
    Project
    Limited as a business arm to implement ward projects and other
    projects
    initiated by the Ward Project office and approved by the board. The
    effect of
    this setup was that some of the functions of the DA and staff in the
    existing
    structure were subsumed into the new structure.

    In like manner the leader also caused to be incorporated another
    company
    named as Madang Works & Equipment Ltd to implement road projects
    which
    were completely in dilapidated states. Large sums of DSIP funds were
    transferred to this company following a Court Order. The two
    companies were
    owned by the Madang DDA as shareholder with the same single
    director.

    Therefrom, the leader among others proposed, office rental and
    engagement of
    consultants which the board eventually endorsed. It is from this new
    structure
    and engagement of consultants and related issues that led to the
    investigation
    by the Ombudsman Commission leading to the categories of allegations
    against
    the leader the subject of this proceeding.

    We now deal with Allegations 5 & 6 together as they relate to the
    engagement
    of Tolo Enterprises.

    31

    Allegation 5: Allowing an associate company, namely Tolo Enterprises

  • Page 36 of 61

  • Ltd to
    benefit through consultancy services to the Madang District
    Development
    Authority
    Allegation 6: Misappropriation of K455,751.20 to the use of Tolo
    Enterprises Ltd
    a company owned by an associate.
    The allegations under these categories are that between 1st December
    2017 and
    31st June 2020 the Leader failed to carry out the obligations
    imposed by Section
    27(1)(b)(c) of the Constitution when he allowed an associate
    company, namely
    Tolo Enterprises Ltd, to financially benefit through consultancy
    services to the
    Madang District Development Authority thereby being guilty of
    misconduct in
    office under Section 27(5)(b) of the Constitution.
    It is further alleged that the leader dishonestly applied the sum of
    K455, 751.20
    to the use of Tolo Enterprises Ltd who was an associate company
    thereby being
    guilty of misconduct in office under Section 13 (a) of the Organic
    Law on the
    Duties and Responsibilities of Leadership.
    The position of the referrer is that Tolo Enterprises was not
    properly engaged
    from the beginning and as such the benefits that were received by
    the company
    were void.
    The leader contended that that the charge was defective for failing
    to plead
    sufficient and relevant material facts. It was also the contention
    that Tolo
    Enterprise was not an associate company or owned by an associate or
    was he a
    shareholder or director to fall under the definition of associate
    under s 1 of the
    Organic Law. It was the assertion that Tolo’s engagement for
    consultancy
    services was approved by the board along with 04 others by
    resolution 1/2018
    of 11 January 2018 and that the Engagement of consultants is
    permitted under
    s 7 of the DDA Act. The amount paid to the company were for services
    rendered
    under the agreement and adequately acquitted and therefore there was
    no
    misappropriation.
    He then submitted that knowing a person or being acquainted with
    them is not
    evidence that they are associates within the definition under
    Section 1 of the
    Organic Law.

  • Page 37 of 61

  • 32

    Because the referrer failed to plead properly the allegation of
    misappropriation
    and the element of associate, the allegations should be dismissed.
    The facts under these allegations are that the leader after a prior
    meeting with
    Mrs Hitolo Carmichael Amet proposed to the Board the engagement of
    Tolo
    Enterprise as technical adviser/consultant. In the minutes of board
    meeting No
    1/2018, the leader was the sponsor of the agenda for the engagement
    of the
    company and 4 others for consultancy services to the Authority.
    After
    introducing the agenda, the leader recused from the meeting since he
    personally knew Mrs. Hitolo Carmichael Amet. By doing so he complied
    with the
    requirements under s 15 of the Organic Law to disclose his interest
    to avoid a
    conflict-of-interest situation.

    The board approved the engagements for an initial 6 months and paid
    them
    from DSIP funds. Thereafter Toles consultancy engagement was
    extended, and
    eventually paid from DSIP funds for services rendered totalling more
    than
    K400,000. There is no evidence of what happened to the other
    consultants after
    their terms expired.
    To find the leader guilty of misconduct in office under these two
    categories there
    must be proof of the allegation that Tolo Enterprise Ltd was an
    associate
    company in the terms of the definition of “associate” under s 1 of
    the Organic
    Law.

    The definition under the Organic Law defines “associate” in the
    following terms;
    “In relation to a person to whom this Law applies, includes a member
    of his
    family or a relative, or a person (including an unincorporated
    profit-seeking
    organization) associated with him or with a member of his family or
    a relative.”

    By virtue of the definition under the Organic Law we deem the leader
    as an
    associate to the company. A company is a person under a corporate

  • Page 38 of 61

  • name and
    is covered by the definition of “person” under s 1 of the Organic
    Law. However,
    a company cannot operate without a person or persons behind the
    corporate
    veil.

    33

    The undisputed facts are that Tolo Enterprises is a company. It is
    owned by a
    person. That person is Mrs Hitolo Carmichael Amet. The leader met
    her prior to
    the formal engagement as consultant and discussed consultancy
    issues. Hitolo
    Carmichael is the wife of Sir Arnold Amet. Sir Arnold had a strong
    relationship
    with the leader. They were both from Madang Province. The leader
    appointed
    Sir Arnold as community representative to the Authority Board. The
    leader and
    Sir Arnold had strong political connections. To round it all off Sir
    Arnold assisted
    the leader before this Tribunal.

    These events cannot be coincidences. Despite which event occurred
    first in time
    all events collectively display a strong relationship between the
    Leader and Sir
    Arnold and his wife Hitolo Carmichael. Sir Arnold’s wife being the
    sole owner
    and director of Tolo Enterprise is therefore connected by that
    relationship to the
    leader.
    Under those circumstances the leader is not saved by the corporate
    veil of Tolo
    Enterprise from being caught by the definition of the word “Person
    “under s 1
    of the Organic Law as associate to the cornpany.

    Further to that, the leader is not saved by his recusal from the
    Board meeting
    that endorsed Hitolo Carmichael as consultant. It was in our view
    only a
    smokescreen to comply with statutory requirement under s15 of the
    Act to
    disclose his interest.

    The declaration of interest in that meeting further affirms the
    strong
    relationship that existed with Tolo and its owner. By the strong
    association or

  • Page 39 of 61

  • relationship, the leader was instrumental in a deliberate course of
    conduct to
    facilitate benefits to Tolo; first on a temporary engagement and
    later, for long
    term engagement; such engagement in a conflict-of-interest
    situation. The only
    wonder is how come the other 4 consultants were never given the same
    treatment.

    Our conclusion is that when the leader allowed Tolo Enterprise to
    benefit from
    consultancy services in a dishonest and conflict of interest
    situation he was guilty
    of misconduct in office under s 27 (5) (b) of the Constitution.

    34

    It therefore follows that the leader dishonestly applied more than
    K400, 000 to
    the benefit of Tolo Enterprise being an associate company thereby
    being guilty
    of misconduct in office under s 13 (a) of the Organic law on Duties
    and
    Responsibilities of leadership.

    We find the leader guilty under allegations 5 & 6.

    ALLEGATION 7. — Use of Madang District Services Improvement
    Programme
    Funds in Paying Electoral Office Rentals Company Contrary to SRC
    Determination 2015 and DSIP Funds Guidelines
    ALLEGATION 8. — Misappropriation of K229,500.00 of the District
    Services
    Improvement Program & District Support Grants on rental payment of
    ward
    project office:
    At the outset the allegations under these two categories are inter-
    related. We
    find that both allegations relate to rental payment for the same
    office and
    location with different amounts and for different purposes. The
    purposes for the
    payment on record are that some were for Electoral Office rental.
    Other
    payment records were for Ward Project office rental. It is difficult
    to
    differentiate who is paying what from those records. We will deal
    the allegations
    together.

    The position of the referrer under these categories is that the
    office at Paramed
    is the leader’s electoral office. It was submitted that the leader

  • Page 40 of 61

  • caused the
    incorporation of the company for electoral duties under the auspices
    of the
    authority to avoid using electoral allowances for office rent and
    staff wages,
    employ electoral staff and serve electoral agenda. His electoral
    officers use that
    office while the DA and his staff use the district office. Since the
    office at
    Paramed was electoral office, the leader was wrong to allow payment
    of rent
    from DSIP funds when he should pay it from his electoral allowance.
    While maintaining that the project office is the leader’s electoral
    office, the
    referrer further submitted the summary of the payments made to the
    employees occupying the ward company’s office, which included
    electoral staff

    35

    By intentionally applying DSIP funds to pay rent for his electoral
    office while
    receiving electoral allowances for rent he was guilty of misconduct
    in office
    under s 13 of the organic law.

    The leader contended that the charges were defective for failing to
    plead with
    clarity sufficient relevant material facts. The alleged breach of
    DSIP guidelines
    were not pleaded as there was no law known as DSIP guidelines as for
    implementation of services improvement funds, the Finance Secretary
    issues
    financial directions from time to time. The SRC determination of
    2015 relied on
    by the referrer was superseded by SRC determination of 2022 and the
    leader
    cannot be prosecuted under a law that did not exist.

    It was submitted that the Authority used its powers given under the
    Act to
    establish the office and operated therefrom for service delivery
    purposes like
    ward visits and project inspections.
    The Administration operated from the district office because they
    had different
    job descriptions. Without refuting the summary of payment referred
    to, the
    leader maintains that the employees of the ward project company, are
    not his
    electoral staff or attached to the member.
    The other contention was that the Authority by resolution

  • Page 41 of 61

  • incorporated the
    Madang Ward Project Limited as permitted by s 4, 7 & 11 of the Act
    to carry out
    service delivery in the district and the company also occupied the
    office at Divine
    Word. Because the company belongs to the Authority the rentals paid
    from DSIP
    funds were not illegal.

    The further contention by the leader was that the use and
    application of DSIP
    funds was a collective decision of the board and not him to be
    deemed as
    dishonest or unethical to dictate the boards resolutions; that the
    application of
    funds by the Authority must be seen in the context of Parliament’s
    intent and
    purpose.

    Since there is no evidence that he intentionally applied public
    funds or breached
    SRC determinations the allegations should be dismissed.

    36

    The combined effect of these two allegations is that the referrer is
    asking the
    tribunal to make a determination on what appears to be against what
    is
    apparent. What appears to be is that an electoral office was
    established by a
    board resolution. What is apparent is that the board resolved to
    establish a ward
    project office and it is operating. The assertion is that the
    project office is in fact
    an electoral of the leader and therefore any rental payments for the
    office rental
    from DSIP funds were unlawful and amounted to double dipping.

    The issue is whose interest is the office intended to serve, the
    Authority interests
    or electoral office interests.
    Our understanding of the setup is that the Madang District
    Development
    Authority is run by a board. Its administrative arm led by the
    District
    Administrator under an established structure.
    The DA is also the Chief Executive Officer of the Authority. He is
    the only person
    in the district with an overlapping responsibility.
    It is undisputed that the administrative arm operates from the
    district office with
    other employees. Under normal circumstances electoral staff would

  • Page 42 of 61

  • not be
    employed with staff in the administration.
    At the time of the allegations none of the employees under the
    district office
    structure was employed at the Divine Word office. Likewise, no
    electoral staff
    was working at the district office. A clear demarcation is apparent.
    Therefore,
    there is a reasonable presumption that the Divine word office is
    occupied by the
    leader’s staff while the district office is occupied by
    administration staff.

    The evidence of the District Administrator was that the district
    office was run
    down and declared unhealthy by the health authorities. The money
    spent by
    DDA on rent would have fully refurbished the district office.
    The referrer argues that while the leader was receiving electoral
    allowance it
    was improper for him to allow rental payments to be made for the
    rental of the
    electoral office using the DSIP funds.
    The leader stood firm on his assertion that the office was not his
    electoral office
    and those using it were not his electoral officers. The referrer
    submitted a
    37

    summary of payments made to the employees which included electoral
    staff
    which the leader acknowledged.
    The District Administrator’s evidence is that the administrative
    building was in a
    rundown state and that it had been previously condemned by Madang
    Heath
    Authority while the Paramed office had a conference room and office
    space
    which was used for Authority and other administrative meetings.
    The leader acknowledges that the district office was condemned and
    the use of
    the rented office at Paramed but makes no mention of his position on
    the district
    office building.
    From those evidence our view is consistent with the evidence of the
    District
    Administrator that, there was no need to rent outside. The exact
    amount of
    money expended towards rental should have been used to maintain and
    the
    existing building. However, we do not wish to delve into the
    judgement of the
    leader and the board to choose rental instead of maintaining the

  • Page 43 of 61

  • existing
    building because the Act gave them the power to make such
    determination.
    However, given the totality of the evidence presented there is a
    presumption
    that the leader had a vested interest to rent another office space.
    He instigated
    the incorporation of a company to implement projects. A company was
    not
    subject to financial guidelines. He could be relieved of rental and
    staff wages
    expenses through the corporate veil.
    The utterances that the district office was condemned by health
    authorities
    attracts condemnation from the tribunal. How was it allowed to
    deteriorate in
    the first place? What happened to all the money that was budgeted
    for the
    district? Why did the leader and the board ignore its condition and
    allow public
    servants to cling to it and scurry for cover in a rented property?
    It was a far cry
    and beyond the bounds of common sense and logic to rent a property
    at DSIP
    expense when the district office was begging maintenance.
    Of the allegations, there is no evidence that there is an electoral
    office. There is
    evidence though of a Ward project office. It was set up by board
    resolution and
    people employed by the company are using the rented property. People
    were
    employed and placed on the structure payroll. It included electoral
    staff.
    Electoral staff or electoral office cannot be given any other
    meaning or definition
    than what the SRC determination recognises them to be.
    38

    They are attached to the leader’s electoral duty functions as
    political staff more
    than district administration functions. It is well known that
    political staff cannot
    be housed together with district administration employees.
    In the present case the functions were lumped together to be under
    the
    umbrella of the Ward Project Company. Electoral staff were employed
    with
    project officers to implement projects. By lumping them the
    employees or those
    on temporary engagement were deemed company employees.
    By deeming them company employees the leader was not required to
    pay the
    electoral staff wages from his electoral allowance as intended by

  • Page 44 of 61

  • SRC
    determination or pay rent for the office occupied by the company.
    The
    corporate veil of the company protected the leader from this
    happening.
    Even though the Ward Development Company was intended for service
    delivery, there were electoral staff using the property and were on
    the new
    structure payroll. It is safe to conclude that they were the
    leader’s electoral staff.
    If the office was rented for the authority, electoral staff would
    not have occupied
    it or operated from it in the first place. Because they were the
    leader’s electoral
    staff, the leader allowed them to operate from the rented office
    under the
    auspices of the company.
    Our view is that if the leader was serious about having a good
    administration
    facility in the district, he would have done repairs to the
    dilapidated district
    building and work from there instead of spending money on rent.
    Instead, he devised a scheme to incorporate a company as a front to
    avoid
    financial guidelines, pay rent for electoral office, and wages for
    electoral staff
    because a company was not subject to financial guidelines. The
    result of it was
    that DSIP funds were expended for purposes for which it could not
    have been
    expended.
    We therefore find that the leader is guilty of misconduct in office
    under s 13 of
    the Organic Law.
    ALLEGATION 9
    Creating a structure within the Madang DDA without obtaining
    approval from
    the Department of Personnel Management.
    39

    Under this category the referrer alleged that the leader created a
    duplicate
    structure within the Authority while there was an existing structure
    in the
    district without the approval of the Department of Personnel
    Management
    pursuant to s 23 of the Act.
    It was the further allegation that the new structure was used to
    amass and
    expend assets belonging to Madang District and made the Madang
    District
    Public servants useless. Therefore, the leader was guilty of
    misconduct in office

  • Page 45 of 61

  • under s 27 (5) (b) of the Constitution.

    The leader contended that the charge cannot be sustained as the only
    approval
    the Head of the Department can give was a proposed staffing
    structure pursuant
    to 23 (2) (a) of the Act. In the present case neither the leader nor
    the Authority
    created a staff structure within the Authority for approval to be
    obtained.

    It was also intimated that the Secretary for Personnel Management in
    evidence
    opined that s23 (2) (a) of the Act was intended for public service
    positions and
    it was not necessary to obtain approval from the department to
    engage
    consultants or persons like project staff.

    To make findings under these categories the Tribunal relies on the
    oral evidence
    and responses made to the Ombudsman Commission by Mr. Albert Ului as
    CEO
    of the authority, Ms Helen Kanimba as Provincial Finance Manageress,
    Ms
    Joanne Yeni as acting District Finance Manageress, Mr. Reuben Lulug
    as Ward
    Project Manager and Pastor John Orape as Church Representative in
    the
    Authority which were tendered into evidence through the Chief
    Ombudsman
    without objection.

    The facts under this category are that the Board approved a proposal
    by the
    leader to create a Ward Project Office within the Authority. Under
    the Ward
    Project Office a staff structure was created. Thereafter the
    Authority at the
    behest of the leader incorporated Madang Ward Project Limited to
    implement
    projects in the district. By the creation of the Ward Project Office
    structure the
    Madang District had two administering structures.

    40

    First was the existing District Administration structure which
    operated from the
    district office and was headed by Albert Ului. The new structure
    under the Ward
    Project Office and later the Ward Project Limited operated from a

  • Page 46 of 61

  • rented office
    at Divine Word University Campus. The project office was headed by
    Rueben
    Lulug.

    The existing District Administration structure implemented sector
    programmes.
    The new structure looked after a Secretariat to the DDA board,
    Special projects,
    and Ward Projects as branches. They were implemented by staff
    employed
    under the new structure.

    According to the evidence of Helen Kaninba and Joanne Yeni the
    payment
    records for disbursement of DSIP funds from 2017 to 2020 were kept
    by the
    District Finance office. They were surrendered to the Ombudsman
    Commission
    as directed. The records from 2021 onwards were kept by the
    secretariat at the
    project office.

    It is undisputed that there was an existing structure in the
    district. It was led by
    the District Administrator. The evidence from the then Acting
    District
    Administrator for Madang and the Secretary for Department of
    Personnel
    Management Taies Sansan affirmed that there was already a structure
    in place
    for each District and the positions were occupied by public
    servants. It was
    headed by the District Administrator and had others working under
    him.

    The Secretary for Personnel Management in cross-examination stated
    that there
    was no regulation in place to implement the Act and guide the
    Authority. This
    evidence was supported by the current Attorney General and former
    Minister
    for Provincial and Local Level Government Affairs Mr. Pilla Niningi
    that there was
    no regulation guiding how structures were to be established as he
    had no
    structure in his own District. His opinion was that Districts have
    set up structures
    to suit their own convenience.

    For purposes of addressing our findings under these categories of
    allegations we
    revert to the relevant provisions of the Act for answers.

  • Page 47 of 61

  • 41

    The powers of the Authority are prescribed by s 7 as follows;

    7. Powers of Authorities.
    (1) An Authority has power to do all things that are necessary or
    convenient
    to be done for, or in connection with, the performance of its
    functions.
    (2) Without limiting Subsection (1), an Authority may —
    (a) enter into contracts; and
    (b) charge fees for work done, and services provided, by the
    Authority; and
    (c) purchase and take on hire, and dispose of, plant, machinery,
    equipment
    and other goods; and
    (d) engage consultants and other persons to perform works or
    services for
    the Authority; and
    (e) form or participate in the formation of companies; and
    (f) enter into partnerships and participate in joint ventures; and
    (g) do anything incidental to any of its powers.
    Our views of s 7 are these. Under subs-section 1 the Authority has
    wide powers
    to do all things necessary or convenient in the performance of its
    functions.
    Under sub-section (2) specific functions are prescribed for the
    Authority to
    perform.

    A specific function permitted under s 7 (2) (d) is the power to
    engage other
    persons to perform works or services for the Authority. Other
    persons in our
    view would refer to persons employed on a casual or temporary basis
    outside of
    the existing public service structure in the district. Payments to
    those engaged
    would be made by the Authority according to budget and or board
    resolution.

    It is also a mandatory requirement under s 23 of the Act that the
    Authority shall
    be serviced by such staff as are necessary in the following terms;
    23. Secretariat and other staff of Authorities.
    (1) An Authority shall be serviced by such staff as are necessary,
    including
    staff for a secretariat to provide administrative and secretarial
    support to the
    Authority, and staff to provide technical services to the Authority.
    (2) The head of the department responsible for personnel management
    matters shall —
    (a) approve a proposed staffing structure for an Authority; and

  • Page 48 of 61

  • 42

    (b) determine the terms and conditions of the staff of an Authority
    in
    accordance with the Public Services (Management) Act 2014 and the
    General
    Orders under that Act.

    In respect of subsection 2 (a) we do not accept the Leader’s
    proposition that to
    obtain approval of the head of Department responsible, one must
    propose a
    staffing structure; that since he did not propose a staffing
    structure no authority
    could be obtained from the head of the Department and therefore, no
    breach
    of s 2 (a) of the Act was committed.

    The leader’s interpretation of s 2 (a) is in our view untenable. The
    head of
    Department cannot approve a structure on its own volition without a
    proposal
    for a staff structure. A proposed staff structure would refer a
    revised version of
    the existing structure or a new one.

    Where a proposed staff structure was not presented to the head of
    the
    Department responsible then in would be deemed that the existing
    structure
    was adequate and there was no need for a new or a restructured one.
    The
    mandatory powers given to the head of the Department responsible
    under
    Section 23 (1) is that the exercise of such power is by necessity
    only. One being
    producing a proposed staffing structure.

    A proposed staff structure would be implemented only after the
    mandatory
    approval was given by the head of the Department responsible. The
    approval
    would entail embodiment of terms and conditions in accordance with
    the Public
    Services (Management Act 2014) and General Orders to enable payments
    for
    entitlements under the normal public service pay structure. The
    conclusion
    therefrom is that there can never be a standalone structure from the
    existing
    one without the mandatory approval.

    The same cannot be said of a secretariat. A secretariat by its very

  • Page 49 of 61

  • nature would
    not compose of a single person. It would be more than one individual
    aligned to
    give administrative and secretarial ortechnical support to the
    authority. It would
    be more a casual or temporary engagement to complement the existing
    structure.
    43

    The preferred option was to engage existing public servants for
    secretariat
    duties but where expertise was lacking, people from outside could be
    engaged
    using the power given by s 7 (2)(d). (Engage secretariat and other
    persons).

    In the present case there was no approval for a structure given by
    the head of
    the department responsible. The obvious reason was that there was no
    proposed staffing structure presented to the head of Department by
    the leader
    or the Authority. The other reason discerned from the evidence of
    Secretary
    Taies Sansa was that there was no regulation in force to implement
    the Act
    properly because of legal advice on a constitutional reference.

    Apart from the legal advice relied on by the Secretary for Personnel
    Management, there is no evidence of any Court Order restraining the
    Department from implementing the Act pending determination of the
    Constitutional Reference.
    There is also no evidence of a ministerial direction pursuant to s
    20 of the Act to
    set up a structure.

    The sum effect of all that is that at the time of the allegations,
    the prior existing
    structure was the only implementing body for the Authority
    recognised by law.
    It was headed by Mr Albert Ului as Acting District Administrator.

    Despite the lack of approval for a structure or a ministerial
    direction, the board
    on 29 November 2018 at the initiative of the leader set up a Ward
    Project
    Structure to implement projects. It employed persons in positions
    created
    therein and paid them from the DSIP fund allocations of the
    Authority. The
    structure was first headed by Rueben Lulug as Project Manager with
    three teams
    under his control.

  • Page 50 of 61

  • The teams were named as Programme Management team, Electoral
    Coordinators and Electoral team and Finance and Administration team.
    Each
    team respectively engaged employees in various positions. Under the
    Electoral
    Coordinators and Electoral team component of the structure there
    were 4
    Electoral Officers with 3 Electoral Assistants each for the 3 LLGs
    and one
    Electoral Assistant for Madang urban totalling 14 persons.
    44

    These acts may be construed as permissible in circumstances where
    the
    Authority was given wide powers under s 23 of the Act to employ
    persons or
    perform incidental acts.

    Our view is that the powers given by s 23 were intended to
    compliment the staff
    in the existing structure if the leader or the authority discovered
    that the existing
    structure did not have the necessary capacity. The Authority could
    not just
    employ persons under another standalone structure from the existing
    structure.
    That did not happen here.

    By setting up the new structure, a pattern was created where duties
    were
    duplicated at unnecessary cost. The powers and functions lawfully
    conferred on
    the DA and officers of the Madang District Authority were usurped.
    A secretariat performed some of them. The evidence of the then
    acting DA and
    CEO Mr Albert Ulu’ was that by the creation of the new structure
    there were
    two administration components in the district. One was composed of
    Provincial
    public servants occupying 10 positions while the other being
    employees of the
    Ward Project Limited. He as the DA and CEO of the authority only
    supervised
    while the new structure implemented the activities of the authority.

    A large amount of DSIP funds were spent on things where the money
    could not
    be lawfully expended like payment of wages to electoral staff and
    rent for
    electoral office and rent for staff.
    Monies spent were from batch payments disbursed quarterly by the
    District
    Finance from DSIP funds to the Ward Project Office who paid the

  • Page 51 of 61

  • service
    providers or suppliers. It caused two sets of acquittals. One was
    from the District
    Finance for batch payments to the Ward Project office while the
    entire spending
    was collated and compiled by the new structure administration.
    Two documents were used on official purposes, one bearing the
    District
    Authority office name while the other bearing the name of the Ward
    Project
    Office. The obvious resultant effect was that DSIP funds meant for
    development
    were expended to maintain an overloaded structure.

    45

    Even though the Act allows for the formations of a company the
    creation and
    incorporation of Madang Ward Project Limited was another load on the
    Authority. It cannot be disputed that the company was specifically
    incorporated
    to implement project requirements of the district which was
    difficult and
    cumbersome through the existing structure. However, by the very
    nature of a
    company the general proposition is that a company is supposed to
    generate
    income or simply put, make money. Revenue, expenditure, profit and
    loss are
    common denominators of a company.

    In the present case the Madang Ward Project Limited does not fall
    into the
    category of a real company. It existed by name only for one purpose.
    To spend
    public funds day in day out without complying with procurement
    processes
    under the safety of the corporate veil. There is no evidence of any
    revenue
    generated by the Madang Ward Project company.
    If there was any revenue generated by the company, then we regret to
    say that
    we have not been led to it by evidence.

    These outcomes would not have arisen had the leader exercised
    restraint and
    improved the existing structure recognised by law like renovating
    the district
    office and establishing office facilities to make conditions
    conducive and
    compatible with normal standards.

  • Page 52 of 61

  • Our view is that the company set up by the board through the leader
    was
    intended to implement projects at will without having to comply with
    the
    requirements of Part VIII of the Public Finance (Management) Act
    1995. It was
    ideal for procurement purposes for the company to invoice the
    Authority as a
    service provider and the Authority pay them from DSIP funds or any
    other fund
    under its custody. Whatever money paid to the company from DSIP is
    not
    subject to Finance procurement processes or financial guidelines. It
    became
    company property and only answerable to Pastor John Orape as the
    sole
    director.

    What is apparent from those observations is that the setup of the
    structure and
    incorporation of the company were very shrewd and flimsy ways of
    misapplying
    public funds under the magic word “development”.
    46

    The conclusion therefrom is that the structure created at the
    behest of the
    leader was operating without the mandatory approval and therefore
    any person
    employed to created positions whether temporary or permanent and
    payments
    made as wages were illegal and void.
    Where a leader breaches or ignores a law of Papua New Guinea he is
    likely to
    breach s 27 (1) (b) of the Constitution. (See Re Application by
    John Mua Nilkare
    (1997) SC 536)

    Even though there was no criminal intent on the part of the leader,
    by
    intentionally causing the application of funds under the control of
    Papua New
    Guinea to purposes to which it could not be applied he breached s 13
    (a) of the
    Organic Law on the Duties and Responsibilities of leadership.

    By creating a structure in breach of the mandatory requirements of s
    22 (4) of
    the Act and making payments of DSIP funds to purposes to which it
    could not be
    applied, the leader is guilty of misconduct in office pursuant to s
    27 (5) (b) of the
    Constitution.

  • Page 53 of 61

  • Allegation 10. Misapplication of Madang DSIP funds on salaries and
    wages of
    electoral staff in the Madang District Ward Project Office contrary
    to the DSIP
    guidelines

    Under this category the referrer alleged that the leader
    intentionally applied
    K233,514.449 of DSIP funds on salaries and wages of electoral office
    staff in the
    Madang Ward Project Office while receiving electoral allowance
    through his
    fortnightly salary thereby being guilty of misconduct in office
    under s 13 of the
    Organic Law.

    The referrer submitted that the salaries and allowances for
    electoral office staff
    should be paid from the leader’s electoral allowance received
    through SRC
    determination EL 2017-17.

    The leader contended that the referrer had failed to plead the
    particulars of the
    DSIP guideline that he was alleged to have breached because there is
    no law
    defined as DSIP guidelines.
    47

    It was the leader’s further contention that the payments of salary
    and wages to
    employees in the Madang District Ward Project Office were
    disbursements in
    accordance with resolutions of the board and its company in
    compliance to with
    s 11 (2) & (3) of the Act.
    Finance division paid the wages for services provided and it was not
    a unilateral
    decision by the leader and therefore the allegation should be
    dismissed.

    To make our findings of primary facts under this category of
    allegations we
    adopt what we said under Category 9 relating to the creation of a
    structure.

    We restate the evidence of the then CEO Mr Albert Ului that by the
    creation of
    the new structure there were two administration components in the
    district.
    One was composed of Provincial public servants occupying 10
    positions while

  • Page 54 of 61

  • the other being employees of the Ward Project office.

    According to the evidence of Finance Manager, Helen Kanimba and
    District
    Finance Manager Joanne Yeni, Madang District Finance Office was the
    paying
    office for all submissions from ward development secretariat for
    projects rental
    and wages of staff and casuals engaged by the Ward Project Office
    and its
    business arms with DSIP funds. The leader was involved in most
    approvals for
    payments.

    This process changed when the District Finance paid grants in
    tranches to the
    Ward Project office and the company paid its employees and service
    providers.
    The District Finance no longer produced the TFF3 & 4 forms for
    payments to be
    made to service providers. The DA only authorised as Financial
    Delegate or s 32
    officer because that activity or responsibility could not be easily
    removed from
    the DA,

    Before us in evidence were copies of disbursements from District
    Finance office
    for periods 2017 to 2020 which were tendered into evidence through
    the Chief
    Ombudsman. It included TFF 3 & 4, and cheque payment records.

    All payments including payment of wages for all casual and staff
    employees were
    paid by the district finance from DSIP funds.
    48

    A tabulation of payments made shows the following;

    A. Electoral Officers
    Name Amount
    1. Warib Medir K14,664
    2. Tony Tigile K7,500
    3. Stephanie Hanlou K7,200
    4. Joel Robert K11,555
    5. Sipora Sul K6,500
    6. Gabriel Papita K15,500
    7. Andy John K8, 000
    8. Jerry Kuta K5, 200
    9. Max Maupe K1, 372
    10.Epen M. Kogoya K8, 121
    11.Sipora Albert K9,450
    12.Sheila Keltem K9,000

  • Page 55 of 61

  • 13. Donny Atege K9,000

    B. Rental Payments for staff;

    1. Emela Amon K6,000
    C. Payments for Church Christmas Programmes
    1. Payment to 13 wards at K5, 000 each totalled K115, 000.

    These were records of payments made by District Finance from DSIP
    funds for
    the various activities upon approval of the Board through the
    leader. From 2021
    grants were paid to the company and funds were expended through the
    company and Ward Project Office and disbursement records were no
    longer
    kept by the District Finance Office. It would be deemed that the
    Secretariat had
    custody of them as they facilitated the earlier requisitions.

    On the face of the record the payments identified above do not
    amount to
    spending on development purposes. It may be deemed that such
    payments
    were lawful spending from DSIP funds allocated for administration
    costs.

    49

    Administration costs in our view do not cover all manner of
    expenditure. There
    are exceptions under the administration costs. Two obvious
    exceptions are
    wages of electoral officers and rental of electoral office. These
    exceptions are
    recognised under SRC determinations.

    Under SRC determination EL 2015-17, individual allowances for
    elected leaders
    were replaced with a lump sum allowance named as electoral allowance
    for
    each member and paid with his fortnightly pay. The leader was
    allocated K86,
    555 as non-taxable and paid fortnightly. The allowance included
    payment for
    electoral staff and electoral office rental.

    The sum effect of those evidence is that there cannot be a combined
    office for
    electoral functions and the normal public service administration
    functions.

    Despite that the Authority is possessed of wide powers under s 7 of
    the Act and

  • Page 56 of 61

  • one of them is to engage consultants and other employees to assist
    in its service
    delivery functions.

    Section 23 of the Act, also in mandatory terms provides that the
    Authority shall
    be serviced by such staff as are necessary, including staff for a
    secretariat to
    provide administrative and secretarial support to the Authority, and
    staff to
    provide technical services to the Authority.

    Our reading of “other employees” under s 7 and “such staff for a
    secretariat”
    under s 23 do not cover electoral officers for the sole reason that
    they are not
    recognised by the Act. The only law recognising electoral officers
    is the Salaries
    and Remuneration Commission (SRC) determinations. The employment of
    electoral officials and their wages are specifically accommodated
    under the
    allowances paid to each elected member by SCR determinations. There
    is no
    evidence that SRC determinations can be implemented or executed from
    DSIP
    funds.

    We cannot agree with the leader’s assertion that SRC determination
    of 2015 did
    not apply. The allegations occurred when the SRC 2015 determination
    was in
    force. The revised SRC determination of 2022 did not apply.
    50

    Electoral staff are the eyes and ears of an elected leader for the
    district. They
    are employed or engaged at the discretion of the leader. Their
    employment or
    engagement is outside of the normal public service structure. Wages
    for an
    electoral officer would have to be paid from the electoral allowance
    of the
    leader as intended by the SRC determination.

    That was not the case with the leader. He permitted employment of
    electoral
    staff on the new structure. The new structure specifically named
    electoral
    officers against positions. By resolution no 2/2018 the Board
    resolved to engage
    temporary electoral staff and drivers and their wages for a budget
    of K6,600 per
    month as proposed by the leader. We find this to be a deliberate

  • Page 57 of 61

  • exercise
    designed to make the payments of wages look valid in line with the
    powers given
    under s 7 and 23 of the Act.

    We refuse to accept the leader’s assertion that those employees were
    not his
    electoral officers. The naming of electoral officers under the new
    structure
    cannot be an oversight. Electoral officers by the very name connotes
    persons
    employed or engaged to help the elected leader perform his electoral
    duties.
    Electoral duties are more politically aligned and outside the normal
    Authority
    business.

    In the present case electoral officers were working from the office
    rented by the
    Authority at Divine Word University and paid from DSIP funds. There
    is no
    evidence that the leader had an electoral office. There is also no
    evidence that
    the leader paid any of the electoral officers from the electoral
    allowances he
    received fortnightly. The evidence is scant as to whether the
    payment of wages
    for electoral officers were from the leader’s discretionary
    component of
    K250,000.

    The charge under this category alleged the leader as guilty of
    misapplication of
    DSIP funds. Misapplication connotes innocent mistake or error more
    than an
    intentional deviation from what is proper.
    In the present case there was no mistake or error committed by
    anyone to pay
    wages to electoral officers.

    51

    The structure was deliberately set up at the behest of the leader to
    employ
    persons under the auspices of sections 7 & 23 of the Act to show
    that wages
    were lawfully paid to electoral officers from DSIP funds.
    By allowing payments to electoral officers by the Authority while
    the leader was
    receiving allowances meant for such payments amounted to double
    dipping on
    the part of the leader. By doing so the leader breached s 5(2) of
    the Organic Law

  • Page 58 of 61

  • thereby being guilty of misconduct in office under s 27 (5) (b) of
    the Constitution
    and s 13 of the Organic Law under this category. We find the leader
    guilty under
    this allegation.

    Category 11 –
    Under this category it is alleged that the leader allowed for the
    appointment of
    Hitolo Carmichael Amet as head of the Secretariat while being a
    member of the
    board representing the community contrary to section 23 of the DDA
    2014
    thereby being guilty of misconduct in office under s 27 (5) (b) of
    the Constitution.
    This allegation has no basis. The undisputed evidence by Hitolo
    Carmichael Amet
    was that she was never at any time appointed a member of the board
    representing the community.

    We find the leader not guilty of the allegation under category 11.

    Category 12 was Withdrawn.

    Category 13. Misappropriation of K15, 649,312.50 of Madang DSIP
    funds
    through the Madang Works and Equipment Ltd in funding plant and
    equipment
    without following procurement processes.

    Under this category the allegation is that the leader intentionally
    applied K15,
    549.50 funding for plant and equipment for Madang roads through the
    Madang
    District Works and Equipment Limited without following procurement
    processes
    thereby being guilty of misconduct in office under s 13 (a) of the
    Organic Law.

    The referrer alleged that the leader failed to apply the normal
    procurement
    process in relation to raising of claims by annexing three vital
    documents namely
    Madang District procurement committee decision, Legal clearance by
    the
    52

    Solicitor General and Contract agreement in breach of a Court
    ordered for
    compliance with legislative procurement requirements, and paid
    monies to
    Madang Works and Equipment limited which was unlawful and applied to
    a

  • Page 59 of 61

  • purpose to which it could not be lawfully applied. Therefore, the
    leader was
    guilty of misconduct in office under s 13 of the Organic Law.

    The leader contended that the law allegedly breached was not pleaded
    as there
    was no law defined as procurement process. The company was not an
    associate
    as he was not a shareholder or director. There was no personal
    unilateral
    decision by him to apply the funds as it was imposed on the
    authority by a Court
    Order. The allegation had no merit and ought to be dismissed.

    This allegation is associated with a Court Order which directed the
    DSIP to pay
    monies to Madang Works & Equipment Limited. The allegation states
    that
    procurement processes ordered by the Court were no complied with.

    The Court Order under item 4 states.

    “The Madang District Finance Manager shall by 30 June 202;
    release K5m of K10.9m deposited into Madang District Development
    Authority
    operating account for Madang town roads which shall be paid to
    Madang Works
    and Equipment Ltd to fund the implementation of the Modilon Road
    project ;
    and (b) raise a cheque for the amount of K15m from the Madang
    District
    Development Authority District Services Improvement funds made
    payable to
    Madang District Works & Equipment Ltd to procure works and plant
    equipment
    in compliance with legislative procurement requirements.”

    The Court Order is specific as to who and which funds are to comply
    with
    procurement requirements. There are two lots of funds from the
    evidence. One
    was the amount deposited into Madang Development Authority operating
    account. This fund is not required to comply with procurement
    requirements
    because a court order directed it to be paid to Madang works &
    Equipment. The
    Court order did not specify whether procurement processes were to be
    complied with under this transaction.

    53

    The other fund is the money paid to Works & Equipment Ltd from
    Madang

  • Page 60 of 61

  • District Services Improvement funds. This fund is the one that
    required
    procurement by the Court Order. The enabling words being “funds made
    payable to Madang Works & Equipment Ltd to procure works, plant and
    equipment in compliance with legislative procurement requirements”.

    The evidence before us relating to Madang Works & Equipment Ltd
    consist of
    financial documents for 6 tranches of K2.5m paid in compliance of
    the Court
    order. There is no evidence of where the money received by Works &
    Equipment
    Ltd was spent on to ascertain whether the money spent was
    misappropriated.
    We pose the question as to whether the company bought a grader for
    K1rn
    without following procurement processes because spending attaches
    with
    misappropriation. Without spending no misappropriation can occur.

    The oral evidence of the DA was that the company bought some plant
    and
    equipment and acquired some from the old regime, but they broke down
    or
    were no longer in use. This evidence was not verified by any
    documentary or
    other evidence.

    By a lack of spending records under this allegation it would be
    farfetched to hold
    that because there was no record of spending by Works & Equipment
    Ltd the
    money was misappropriated.

    The allegation has not been proved to the required standard. The
    leader is not
    guilty under this allegation.

    In conclusion we declare the following findings.
    Category 1. Guilty
    Category 2. Guilty
    Category 3. Not Guilty
    Category 4. Not guilty
    Category 5. Guilty
    Category 6. Guilty
    Category 7. Guilty
    Category 8. Not guilty
    54

    Category 9. Guilty
    Category 10. Guilty
    Category 11. Not Guilty
    Category 12. Withdrawn

  • Page 61 of 61

  • Category 13. Not Guilty

    Lawyers for the referrer: Public Prosecutor
    Lawyers for the leader: Giruakonda Solicitors and Barristers