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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