Ombudsman Commission of Papua New Guinea

	Home \| Databases \| WorldLII \| Search \| Feedback \| Help Ombudsman Commission of Papua New Guinea - Speech 27 April 2005

THE REALITIES FACING THE PACIFIC FORUM COUNTRY’S GOVERNMENTS
AND THE PUBLIC SERVICE MACHINERIES ON THE ISSUES OF GOVERNANCE:

THE LEADERSHIP CODE OF PAPUA NEW GUINEA -
A LAW DESIGNED TO IMPROVE GOVERNANCE A PAPER PRESENTED BY
PETER MASI OMBUDSMAN – PNG

DURING THE 2 SAVENACA SIWATIBAU MEMORIAL LECTURE ON GOOD GOVERNANCE
AT THE UNIVERSITY OF THE SOUTH PACIFIC – SUVA, FIJI ISLANDS

In taking the floor, let me first thank Transparency International for facilitating my coming here to share, on behalf of the Ombudsman Commission of Papua New Guinea (in place of the Chief Ombudsman, Mr. Ila Geno) our views on governance in our region in the Pacific. Governance and Management of nations are by-products of the Conduct of Leaders in Governments, Chief Executives in the Public Service Machineries as well as Constitutional Office-Holders such as the Members of the Judiciary for example. It is our belief that the conduct of leaders impinges on governance overall, sometimes for good and other times for the worse. And that belief by the framers of the Constitution of Papua New Guinea was manifested when they recommended that there had to be a code of conduct for leaders in the emerging nation-state and not only that- the code was to be enforceable.

Thus we have, in Papua New Guinea this code of conduct for all our leaders – and 30 years in the running. The code is a Constitutional Law, which carries the name as the Organic Law on the Duties and Responsibilities of Leadership. I will come back to this with some essential and relevant details later on.

And before I begin my discussion, let me inform all you distinguished audience that I come here to share information and that I bring no answers to suit any governing structures, settings and styles. To begin with the preliminaries I would like us to tour the Pacific. Let us come to identify our commonalities, in location and governance issues and future plans. The sub-topics below should suffix to tone up our discussions before I conclude with the discussions on the Leadership Code and to leave here with you where the countries in the Pacific should go from here. We should expand our thoughts under the following:

Forum Countries we all know covers the entire Pacific Ocean and at today’s count there are sixteen (16) of us but fourteen (14 – i.e. excluding Australia and New Zealand) countries are more especially the targets for this vision and plan. The Vision is:

‘Leaders believe the Pacific Region can, should and will be a region of peace, harmony, security and economic prosperity, so that all of its people can live free and worthwhile lives. We treasure the diversity of the Pacific and seek a future in which its cultures, traditions and religious beliefs are valued, honoured and developed. We seek a Pacific Region that is respected for the quality of its governance, the sustainable management of its resources, the full observance of democratic values and for its defence of human rights. We seek partnership with our neighbours and beyond to develop knowledge, to improve our communications and to ensure a sustainable economic existence.

And thus, our Leaders have spoken; the vision above encapsulates and charters the course for governments, servants of people, and commerce and industry and non-government organisations in the region.

To give impetus to the Vision, the current Political Heads in the region, have further sanctioned four (4) priority areas that all regional governments should concentrate their governing decisions and efforts to achieve. We are, for the purpose of this discussion` interested in Good Governance which is Priority number 3, after Economic Growth, Sustainable Development but before Security.

Our Leaders admit and believe that our governments in the region are encountering governance issues, constraints and problems. More have been the pressure on governments in recent times and especially after September the 11^th. Our Leaders therefore are committed to improve and in realty take complete control of governments – in the areas of decision-making without any external and contravening interests and influences.

In exercising political and administrative mandates in all levels of government structures, agents and servants our Leaders have said that all peoples in the Pacific should observe, improve on, give considerations to and apply the following for better decision making:

The list above is what our Leaders aim to lead to achieve and that is indicative of the seriousness and commitment of our Leaders in addressing the issue of governance.

There is a general view that, the Melanesian, the Polynesian as well as the Micronesian independent and self-governing states have issues that relate to governance. Some are issues not too alarming, others are worth taking notice of and yet others require serious attention and action. Each of our nations has varying degree of governance adequacies or inadequacies.

We have varying cultures spread across the Pacific. Some cultural groupings as nations or parts of nations have had European and other external contacts for over 200 years and yet for example in the Highlands of Papua New Guinea - 50 years only. There are Monarchies, Chieftains and Egalitarians societies, which continue to control and apply traditional beliefs and norms of any given group. In every respect there is a live political structure in place.

Western Democracy and its ideals have been accommodated by all of our states in the region. In some of our countries competition between the old traditional method of governance and the adopted system has been accepted and allowed rather than governments ensuring a complimentary approach and application of the methods of the 2 worlds. Countries like Fiji (I like) by the use of the Chieftains hereditary authority facilitates modern governments’ decisions and this approach is a realistic one and rightly it is the Pacific Way of conducting political, economical and social affairs.

Newer threats in the region include population growth, security concerns and natural disasters. Overall, governments in the region must recognise these other threats when dealing with improving good governance and it is enlightening to see that our Leaders have in fact taken the appropriate steps to plan and lead in the drive towards economic prosperity and sustainable development using good governance as the vehicle to achieve our common vision.

Let me now delve into some realities of governments and the public service machineries not here in this part only, but of the world.

• Self-aggrandisement and wealth related to office and large developmental official contracts

Ombudsman worldwide deal daily with the above list of deviations on compliance to laws, regulations, guidelines and volumes of procedures and good business practices as well as simply unacceptable conduct of public officials.

ENFORCING THE LEADERSHIP CODE IN PNG – A WAY OF FACILITATING GOOD GOVERNANCE?

There is a question mark at the end of the sub-topic; it is a reminder that I came with no customized answer, but to expose to this forum our experiences in dealing with Leaders so that they can conduct the affairs of the nation diligently with accountability and transparency.

The Ombudsman Commission in Papua New Guinea is a creature of the Constitution. The Constitution provides for its establishment and there are 2 supporting Organic Laws that enables and gives the legal mandate for the Commission to perform its

A separate document is available for the students of the Legal Fraternity and others who wish to indulge themselves with any additional on the application of the Leadership Code. I would prefer to continue as a layman in this forum.

This is the traditional Ombudsman legislation that over 100 countries that are affiliated to the International Ombudsman Institute, with modification of-course, but that have features that are common. Basically the common features in law empowers the Ombudsman to guard against abuse of power, assist those exercising public power to do their jobs efficiently and fairly and lastly to impose accountability on those exercising public power.

The Ombudsman causes investigations either on his/her own initiative or from complaints by any member of the public. The Commission can terminate investigation or finalise it with a report to the respective Government Bodies and the National Parliament with recommendation.

Ombudsman recommendations include disciplining public officials and correcting defective legislations, regulations, guidelines and procedures.

This is the Code of Ethics/Conduct law or commonly known as the Leadership Code.

This Code basically assists and informs leaders of their basic responsibilities:

• Must reveal personal interest in matters being dealt with in his official capacity

The list above constitutes the framework of possible misconduct cases where breaches occur in. Lawyers in PNG keep saying that this law is unambiguous. No leader as a politician or a public servant can go wrong if he or she understands the purpose and the letter of this law. Looking back at the list it just amplifies common-sense and proper conduct during their mandate in office and if this is a Christian Pacific our mindset should basically be simple, clear and God-directed always.

The only Leader not subject to the LSCode in Papua New Guinea is the Governor-General. Prime Minister, Ministers, Local, Provincial and National Parliamentarians; Departmental Secretaries; Heads and Members of Boards e.g. University of PNG Board and Heads and members of Statutory Bodies; Heads of Overseas Missions; 3 Members of the Ombudsman Commission; all Constitutional Office-Holders including Judges of the National and Supreme Courts, the Electoral Commissioner, the Police Commissioner, The Commander of the Defence Force, The Chief Magistrate and all staff of Ministers – all of these officials are classified as Leaders and therefore they come under the Leadership Code.

The conduct of spouses and children under the age of 18 are included as conduct of the classified Leaders. The Ombudsman Commission of Papua New Guinea has yet to take a position on the cases of more than 1 spouse.

THE PROCESS OF A REFERRAL OF A LEADER TO THE PUBLIC PROSECUTOR BY THE OMBUDSMAN COMMISSION.

The Ombudsman investigates a complaint, and if there is a case for the Leader to answer we give him/her a RIGHT TO BE HEARD, and he or she is given 21 days to respond. The Commission analyses the Leaders’ response and either the complaints against the Leader lack substance and dies a natural death in the Ombudsman’s office or if there is a prima facia case, the Commission refers the Leader to the Public Prosecutor for him to perform his constitutional role of independent checks and balance.

Only when the Public Prosecutor is satisfied that the Leader needs to answer the allegations of misconduct in office would he request the Chief Justice to appoint a Leadership Tribunal to process the Leader.

Leadership investigations are private investigations and any allegation of misconduct in office reaches the public domain only after the matter is referred to the Public Prosecutor.

The investigative work of the Ombudsman comes to an end after he refers the Leader to the Public Prosecutor. However, ombudsman investigators become witnesses during the LT proceedings.

The Tribunals for Leaders comprises a Judge who is the Chairperson and 2 District Court Magistrates. Where misconduct charges are for the Prime Minister, Chief Justice, Judges and former Judges and other Constitutional Office-Holders and Ombudsmen all three members of the Tribunal are Judges.

Since our independence and for 30 years now the Ombudsman Commission Of Papua New Guinea has enforced the Leadership Code. The tally below shows the status of all the handled cases:

A very high number of completed investigations and prima facia cases still remain in the offices of the Ombudsman Commission. The reason they are still there is because the Leaders have ceased to be in office. A good example was in 2002. We had a lot of Leaders being investigated, but when the General Elections was conducted in July more than 50 % of those Leaders lost office and therefore the Ombudsman Commission also lost its jurisdiction over them.

When those respective officials come into another Leadership Office, the process of investigations re-commences.

- Misappropriation of funds for the Independent State of PNG : 80% of misconduct cases

Up to this moment, allegations of misconduct cases keep coming in weekly and the majority is still misappropriation of funds.

Before our independence in 1975, the Constitutional Planning Committee that was established to plan for a Constitution for the country had this to say on the Leadership Code provisions:

“The success of a nation, we believe, depends ultimately on its people and their leaders. No amount of careful planning in government institutions or scientific disciplines will achieve liberation and fulfilment of citizens of our country unless the leaders- those who hold official positions of power, authority or influence – have bold vision, work hard and are resolutely dedicated to the service of their people.

… No one can do more to set the tone and style of the nation than the leaders. Contrariwise, no one in the nation can do more to lower the standard than the leaders … both by inaction and improper action the leaders can betray the Peoples’ confidence in them. What the leaders do and how they are seen to do it: these are things that can legitimise them in the eyes of the people and set the standard for the nation…

… We believe that perhaps the single most important factor in determining the direction of national development is the quality of leadership. If Papua New Guinea is to have any chance of implementing its National Goals and Directive Principles, it must ensure that its leaders have a genuine commitment to these goals.’

That above are the noble forethought, intention and belief of the Committee, which our pioneer Parliament unanimously adopted and is being enforced today by the Ombudsman Commission of Papua New Guinea.

The long and the short of it is that the Leadership Code of Papua New Guinea was designed to assist, advise, facilitate and correct conduct of leaders in order to develop and maintain a culture of good governance by all public officials for the achievement of the country’s higher goals in meeting the hopes and the aspirations of the people of Papua New Guinea.

The Forum Secretariat based here in Fiji I believe, by now has developed a Model Pacific Leadership Code, which our countries in the region are encouraged to adopt and use and during the process of adoption, individual nations should review and modify their codes to suit their traditional as well as adopted western democratic systems of governments.

Fiji Parliament we hear, maybe deciding on the adoption of the Fiji LS Code in May 2005. Let me now read from the 2004 Fiji HRC’s article by Director Shaista Shameem;

‘The Fiji Human Rights Commission believes that the methodology of examining the relationship between good governance and human rights should be re-visited. Rather than looking at how good governance, democratic practice and human rights can be harmoniously and seamlessly welded, the Commissions’ view is that good governance in the most acceptable sense will inevitably follow if human rights are protected and promoted to the fullest extent. Respect for human rights will lead to good governance without qualification.’

This is an alternate approach, sanctioned by the laws of Fiji, and ultimately the name of the game is basically the same; it is all about growing and nurturing good governance within governments and bureaucracies.

The Leadership Code approaches and enforcement by PNG are shared and applied by Vanuatu and Solomon Islands. And the successes of the enforcement are something the individual watchdog agencies and their political masters must strive together to better all the time. Similar cooperation must be exercised when addressing and dealing with the failures when administering the LS Code. The common problem here is when governments try to starve oversight agencies of adequate resources.

After September the 11^ththe issue about government failures came under the microscope of the powerful Western Nations like the United States and in our region Australia. The perception is that weaker nations are easy targets for terrorist groups to use as havens to promote their activities.

No one sitting here today can dispute that claim and it is a fact that the Pacific Island States indeed need to improve on governance so that we become strong. We must be strong so that we call the shots politically, economically and socially. Though, I have not seen any evidence of terrorist activities, mingling within the 832 tribes and clans of the Papua New Guinea villages, the threat, ladies and gentlemen is looming and governments must improve structures, maintain security infrastructures as well and the conduct of public officials must focus on the promotion of the interest of nation-states.

Internal law and order problems have traits of terror especially when public order is destabilised. Left unchecked and uncontrolled, it provides the opening for external terror activities to gain hold, breed and expand. Internal law and order are signs that sectors of societies are strained with pain and struggles for medicine for example, education or in want of an additional and stronger Fiji dollar or PNG Kina and that they must relief of these pressures by taking into their own hands unlawful acts to signal their discontentment.

We, the citizens must be positive now and look to better the future. We, include politicians, public servants, constitutional office- holders, academics and other professionals, learning institutions, students, watchdog agencies, missions, non-government organisations including voluntary watch dog agencies such as Transparency International, business entrepreneurs and the ordinary people.

Every one in our own way and in our personalised and/or official settings can do one little good and one lawful act to make a little difference but imagine that one little ripple can generate a wave of change on self, another individual, the community and the nation. It is all about the re-examination of the present attitude we have toward others, communities and public offices and the lack in contributing to social order that we must recognise and resolute to make transformation and change.

Ombudsmen worldwide have a principle that the investigators in an ombudsman office must always put a face behind every complaint that we receive. That someone is aggrieved by a decision or a series of decisions of a government body or of an agent in government and investigators in ombudsman offices must set out to find the truth and expose it.

Coming back to the matter at hand, the tone of good governance for a new Pacific has been set. Our captains in the region – I am now going back to the Pacific Plan – have decided to pursue efforts that would have economical, security and sustainable impact in the region. And the significant and readily available tool to realise all that is the application of good governing practices by every government official.

This is not an unusual question that arises in the minds of audiences when lectures and speeches are over. One shakes the dust off his/her feet and says – I’ve heard that before; so what else is new and now let us see his/her words transform into something tangible that can touch lives of our people!

Human beings we are and we have weaknesses and allow me to express this analogy.

Some of us make things happen. The next group of mankind see things happen. The last group of people come into the scene when all is said and done and asks- what has happened? Oh come, come let us celebrate when the outcome would satisfy and fatten his/her interest!

Where we go from here is to progress further on what has begun regionally as a group and individually as nations to improve governance. What is in train are as follows:

• Every citizen in the Pacific should now rise with the leaders and fight corruption; abuse of powers; misapplication of funds and improve governance and to clear the way for the effective delivery of all services, because our Leaders have chartered a course toward a new destiny.

• It is the plan of the Forum Governments to establish ombudsman offices in Tuvalu, Kiribati, Nauru and Palau in the near future. Governments and people of these countries must welcome this. I am sure the current ombudsman offices in Cook Islands, Fiji, Papua New Guinea, Samoa, Solomon Islands and Vanuatu will assist in this initiative.

• In 2000, the Ombudspersons of the world met in Durbin, South Africa and it was during that time that Ombudsman Cook Islands- Mr Andrew Turua, Ombudsman Raho Hitolo PNG and Ombudsman Haninton Vanuatu set into motion the Pacific Island Ombudsman Forum concept – the group was to develop an MOU to use as a guide to seek support and to assist smaller pacific island states in establishing, developing and improving the work of the ombudsman in our smaller island states.

This has become a reality, and the Pacific Plan which we did not know about until February 2005 runs parallel with the PIOF idea.

• USP initiative is a surprising one for me. I only learnt of this last week. It is about the introduction of a compulsory course on governance for all students at USP. And the man and the visionary behind this was former Vice Chancellor, Saveneca Siwatibau. He is no longer with us, but he will long be remembered in the Pacific, and this speech is in memory of him.

• Whilst USP is based in Fiji, but is of the Pacific has made a mark I wish to applaud another initiative from Fiji, but this time from the Fiji Human Rights Commission, as conveyed by the Qtrly, of December 2004 and on page 4. Let me now quote Mr Walter Rigomoto – the Chairperson of the Commission.

“The Fiji Human Rights Commission has already taken this initiative by developing human rights curricula in partnership with the Ministry of Education. It is envisaged that human rights perspectives will be integrated into the formal English curriculum thus fulfilling a promise of the 2003-2005 National Plan of Action for Human Rights – a document that provides a 3 year framework of strategies, priorities and commitments to build a human rights culture in Fiji” end of quote

To build a human rights culture in Fiji is a long term initiative that I believe would have very positive impact on governments in the future. Other Pacific countries are encouraged to adopt this initiative.

• The Government Bodies Liaison Project. This initiative was adopted from the Queensland Ombudsman office and is now in its 3^rd year in PNG. The purpose of this is for the ombudsman’s office to create and maintain a dialogue with Government Bodies. The Ombudsman after receiving complaints refers those complaints back to the Government Body to resolve. The aim of this process is to ensure that Government agencies install and maintain complaint handling mechanism, at the same time it serves as a reminder that the decisions must be made lawfully to avoid creating unnecessary and petty complaints both towards their own employees and any member of the public.

Complaints of systemic nature are dealt normally through the ombudsman’s investigative mandate. The project is quite successful, and at this point in time we have caused dialogue with about 20 agencies including provincial governments. This initiative can be tried by our neighbours.

• Ombudsman Studies as a module in the governance certified course is a topic currently under discussions between OCPNG, University of Madang, PNG, and in-conjunction with ANU. (I am sure Prof. Duncan is aware of this).

In principle, the compulsory governance programme introduced in USP is what we would like to see take place in PNG.

In this connection, I would like to challenge Pacific Island Academics to, and in dialogue with the ANU AP studies, design and introduce governance or ombudsman studies into all our Tertiary Institutions including Institutes of Public Managements where civil servants undertake management modules.

Governments of the region should then be encouraged to select and appoint Public officials who posses governance qualifications.

• Whistleblowers as individuals and non-government organisations such as Transparency International and Government watchdogs such as HR Commissions, Ombudsman Commission, the Auditor General and Public Service Commissions, and Unions who fight for workers rights must cooperate and combine in their efforts to expose corruptive work practices and promote good governance in the work place.

There is an advantage not only resources-wise in cooperating with TI, for example because government supervisory bodies though are independent in law are part of government and sometimes there could arise elements of caution when delicate, corruptive issues are exposed and debated in the public domain.

In PNG, especially after the 2002 National Elections the general public when lodging complaints provide original/copies to the OC or to TI. This is Cooperation – all for the common good.

• Whistleblowers legislations or Freedom of Information laws must be enacted in countries where such is lacking including PNG. Senior government officials calculate and institute structural changes in government and officially push aside whistleblowers or highly qualified officers who are threats to their jobs.

Governments must protect whistleblowers. The suffering some have faced so far to fight against the filth and the evil passions of those in power is a reality and if good governance is to prevail some action should be done here.

• Traditional and newly adopted western system of government must complement each other. Decentralising economical and political powers is something some central governments in the Pacific are hesitant about. It is important for us to know that the Pacific’s primordial societies governed their polities totally, which included wealth and social assets in traditional communities.

Our Pacific Plan has this topic as an area to improve, which is a step in the right direction. Imported government systems and laws have their limits when dealing with traditional related social, political and economical issues.

Governance is a tool in the hands of a person. And this tool if it is in the hands of a person who understands the exact purpose of why that tool was made but at the same time he or she uses it correctly is in fact using that tool productively – this is when it is called Good Governance.

Bad Governance is the opposite of the above. Looking into the government machinery these days, and taking for example my role as an Ombudsman, some middle and very senior officers in government, severely conduct unlawful acts; make unfair decisions; make decisions that are not based on fact or in law; make decision with inappropriate considerations; they make discriminatory decisions or make decisions which are simply wrong.

Bad governance is inconsistence with laws, procedures etc. It is purely non-compliance problem that we allow and feed.

There need to be understanding on good governance issues, and we need advocates to pursue good governance throughout the Pacific and in this room we remember our former VC Siwatimbau….he saw the declining management of nations and he was in a capacity to play his part to do something to correct the declining state of affairs not for the immediate return but for the long term.

Men and women who take the compulsory course on governance in this institution is – I want to believe-are the new crop of high profile and purposeful politicians and public servants who must transform governments in the Pacific. Remember businesses and social order cannot flourish anywhere without the leading of strong governments, and you have that obligation and duty as ambassadors and flag-carriers of good governance when you depart from this University, because you are the leaders of tomorrow and whilst our ancestors are resting in peace may God lead you in your regional and combine endeavour, because the paradise in the pacific rest in your hands.

^{____________________________________________________________________________________}

Ombudsman Commission of Papua New Guinea - Speech 27 April 2005

Ombudsman Commission of Papua New Guinea - Speech 27 April 2005