Reference by the Public Prosecutor; Of a Matter pursuant to s27 (2) of the Organic Law on the Duties and Responsibilities of Leadership; To the Tribunal appointed under Section 27 (7) (d) of that law to investigate, inquire into and determine alleged misconduct in office; In the Matter of Grand Chief Sir Michael Somare, GCL, GCMG CH CF KTJ MP; Prime Minister, Member for East Sepik Provincial, Member East Sepik Provincial Assembly (2011) N4224

• Jurisdiction: Papua New Guinea
• Judge: The Honourable Roger Gyles, AO QC, Chairman; The Honourable Sir Bruce Robertson, Member; The Right Honourable Sir Robin Auld, Member
• Judgment Date: 21 March 2011
• Citation: (2011) N4224
• Docket Number: LT 1 OF 2010
• Court: Leadership Tribunal
• Year: 2011
• Judgement Number: N4224

Full Title: LT 1 OF 2010; Reference by the Public Prosecutor; Of a Matter pursuant to s27 (2) of the Organic Law on the Duties and Responsibilities of Leadership; To the Tribunal appointed under Section 27 (7) (d) of that law to investigate, inquire into and determine alleged misconduct in office; In the Matter of Grand Chief Sir Michael Somare, GCL, GCMG CH CF KTJ MP; Prime Minister, Member for East Sepik Provincial, Member East Sepik Provincial Assembly (2011) N4224

Leadership Tribunal: The Honourable Roger Gyles, AO QC, Chairman; The Honourable Sir Bruce Robertson, Member; The Right Honourable Sir Robin Auld, Member

Judgment Delivered: 21 March 2011

N4224

PAPUA NEW GUINEA

IN THE LEADERSHIP TRIBUNAL

LT 1 OF 2010

REFERENCE BY THE PUBLIC PROSECUTOR

OF A MATTER PURSUANT TO SECTION 27 (2) OF THE ORGANIC LAW ON THE DUTIES AND RESPONSIBILITIES OF LEADERSHIP

TO THE TRIBUNAL

APPOINTED UNDER SECTION 27 (7) (d) OF THAT LAW TO INVESTIGATE, INQUIRE INTO AND DETERMINE ALLEGED MISONCDUCT IN OFFICE

IN THE MATTER OF

GRAND CHIEF SIR MICHAEL SOMARE, GCL, GCMG CH CF KtJ MP

PRIME MINISTER

MEMBER FOR

EAST SEPIK PROVINCIAL

MEMBER

EAST SEPIK PROVINCIAL ASSEMBLY

THE HONOURABLE ROGER GYLES, AO QC, CHAIRMAN,

THE HONOURABLE SIR BRUCE ROBERTSON, MEMBER

THE RIGHT HONOURBLE SIR ROBIN AULD, MEMBER

Hearings held at WAIGANI:

10th, 11th, 14th, 15th March 2011

DECISION ON GUILT: 21ST MARCH 2011

Counsel:

Mr. Pondros Kaluwin with Mr. Timothy Ai – for the Public Prosecutor Mr. Ian Molloy, Mr. Kerenga Kua, and Mr. Justin Wohuinangu – For the Leader

TRIBUNAL DECISION ON GUILT

SECTION 1

INTRODUCTION

1.1. We begin by explaining what the Tribunal is deciding and what it is not deciding. The allegations of misconduct in office by the Grand Chief Sir Michael Somare GCL GCMG CH CF KtJ, MP (the Leader) all relate to or arise out of the obligation imposed upon a person to whom the law applies (a leader) by s4 of the Organic Law on the Duties and Responsibilities of Leaders (Organic Law on Leadership) to give to t he Ombudsman Commission statements of income, assets, other interests and liabilities. There is no allegation of a breach of any of the substantive provisions of part II of the Organic Law on Leadership which prohibit various corrupt practices. The allegations now fall into 3 categories:

1. Three (3) years for which no statements were filed

2. Five (5) years for which statements were filed late

3. Ten (10) years for which the statements that were provided were incomplete in material particulars.

1.2. The first two (2) categories require little introductory explanation. The third does. Section 4 (6) (b) of the Organic Law on Leadership relevantly provides that a leader who knowingly, recklessly or negligently gives to the Ombudsman Commission a statement that is “false, misleading or incomplete in a material particular” is guilty of misconduct in office. It is not alleged that nay of the statements were false or misleading. It is only alleged that they were incomplete in material particulars. Furthermore, the Public Prosecutor is seeking to establish those allegations do not allege that the Leader received or held hidden income or assets. The complaint is that there were blanks in the forms returned. The case presented by the Ombudsman Commission and the Public Prosecutor does not involve the Tribunal in any inquiry into assets, income or liabilities of the Leader.

SECTION 2

APPOINTMENT OF THE TRIBUNAL AND THE ALLEGATIONS

2.1. The Tribunal was appointed by Sir Salamo Injia Kt, Chief Justice of Papua New Guinea, to inquire into and determine allegations of misconduct in office by the Leader. A copy of the instrument of appointment and the notes accompanying it are Appendix 1 to this decision.

2.2 Those allegations had been referred to the Public Prosecutor by the Ombudsman Commission on 26 June 2008 pursuant to s 27(1) of the Organic Law on Leadership and, in turn, by the Acting Public Prosecutor, to the Chief Justice on 13 December 2010 for the appointment of a tribunal pursuant to s27(7)(d) of the Organic Law on Leadership and then to this Tribunal. The Reference by the Public Prosecutor is Appendix 2 to this decision.

2.3 The allegations in the Reference, and only those allegations, constitute the “matter” referred to the Tribunal pursuant to s27(2) of the Organic Law on Leadership.

2.4 Part II of the Organic Law on Leadership deals with the Responsibilities of Leadership. S4 of part II is critical to the case. It requires a Leader to file annual statements of income, assets and so no whilst in office. It provides (relevantly) as follows:

STATEMENT OF INCOME, ETC.

“(1) A person to whom this Law applies shall –

(a) within three months after Independence Day; or

(b) within three months after becoming such a person.

as the case may be, and at least once in every period of 12 months while he remains such a person, give to the Ombudsman Commission a statement to the best of his knowledge setting out, in respect separately of himself and his spouse and any of his children under voting age-

(a) the total assets including money, personal property and real property in the possession or under the control of each of them;

and

(b) the total income received by each of them during the period to which the statement relates and the source of each of those incomes; and ……………

(2) The period to which a statement under Subsection (1) shall relate is:

(a) in the case of the first statement-the preceding 12 months; and

(b) in any other case-the period since the last statement was given.

(3) In the case of sundries and minor items it is sufficient if the declaration shows their general natures and approximate amounts or values.

(4) The Ombudsman Commission or other authority may, by notice in writing to a person to whom this Law applies, require him to explain or given details or further details of any matters relating to the statement including-

(a) sundries and minor items shown in accordance with Subsection (3); and

(b) omissions or apparent omissions; and

(c) discrepancies in the statement or between it and other statements or other information available to Ombudsman Commission or other authority.

…………….

(6) A person to whom this Law applies who-

(a) fails without reasonable excuse (the burden of proof of which is upon him) to give to the Ombudsman Commission or other authority a statement in accordance with Subsection (1), or to give any explanation or details required under Subsection (4); or

(b) knowingly, reckless or negligently gives such a statement or explanation, or any such details, that is or are false, misleading or incomplete in a material particular,

is guilty of misconduct in office”.

2.5 The evident purpose of giving statements pursuant to s4 is to enable the Ombudsman Commission to keep track of the assets, income, liabilities and dealings of a leader each 12 months. Scrutiny of those statements over time will assist in detecting possible breaches of the substantive provisions of the Organic Law on Leadership.

In addition to the power in s4(4), Part III of the Organic Law on Leadership gives the Ombudsman Commission functions and powers of examination and investigation of each statement lodged with it under s4. The provision of timely statements is a fundamental plank in ensuring that a person carries out his public duties as a leader with integrity. The purpose of the Leadership Code is to “preserve the people of Papua New Guinea from misconduct by its leaders”. See Supreme Court Reference No. 2 [1992] PNGLR 336 at 341 – 342.

2.6. Other relevant provisions of the Constitution and the Organic Law on Leadership are set out in Appendix 3 to this decision.

SECTION 3

ROLE AND PROCEDURE OF THE TRIBUNAL

3.1 Section 27 of the Organic Law on Leadership is included in Part V which is headed “Enforcement”. Sub-sections (4) & (5) are as follows:

(4) The tribunal shall make due inquiry into the matter referred to it, without regard to legal formalities or the rules of evidence, and may inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice.

(5) If the tribunal finds that a person to whom this law applies is guilty of misconduct in office, it shall recommend to the appropriate authority that –

(a) he be dismissed from office or position; or

(b) as permitted by Section 28 (1A) further provisions relating to the (Leadership Code) of the Constitution and in the circumstances set out in that subsection – some other penalty provided for by an Act of the Parliament be imposed.

3.2 One of the governing authorities concerning the role and procedure of the Tribunal is the decision of the Supreme Court in re James Eki Mopio [1981] PNGLR 416. The reference to the Supreme Court in that case raised the question of the standard of proof which a tribunal should apply. The answer) at page 421) was:

“There is no absolute degree or standard of proof to be applied by the...