Ombudsman Commission of Papua New Guinea

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Ombudsman Tolerance and Investigations amidst disorderly democracy :
Can the PNG Ombudsman survive?

A paper presented at the 22nd APOR Conference in Wellington, NZ on Thursday
February 10th 2005 by Ombudsman Peter Masi, Ombudsman of Papua New Guinea.

• Re- group after 4 months since the IOI meeting in Quebec – with exceptions

Commissioners of human rights and public relations, mediators, ombudsmen, public defenders or by whatever name the citizens protectors are called by, in both the classical and speciality environments and the officials who fill these positions are special as well as being privileged and they are – if I may express by way of an analogy - like the bamboo. Individually independent, mentally tough, resilient and strong enough to overcome circumstances.

Like the bamboo, one must be deeply rooted with firm principles yet be flexible to bend with the winds of change around us. Swaying with the wind yet not breaking and falling apart.

The role of the ombudsman differs little in principle and in definition although there is no one-world template (I doubt there will be one in our generation) in mandate and work processes where all of us can fit into and apply them back home after sharing our ideas in forums such as this one or at the International Ombudsman Institute. The roles and the powers we posses are simply to supervise government actions regardless of our nationality and under whatever the socio-political and economic conditions.

Likewise, we differ and vary from each other in the joys, successes, satisfactions and the failures in our work.

The Australasia Pacific Ombudsman Regional(APOR) grouping is made up of countries with basic democratic flavourings and each polity’s years of applications of the democratic system of government again makes us different from each other. In general though, more and more countries of previous and other non-democratic regimes are embracing democracy and the ideals of it – free elections, freedom of the various kinds of expressions in the various constitutions and laws.

To want and to wish and aspire for a perfect democracy or an orderly democracy by new, not too old and well established states is, by measure of the human potential, an achievable objective for some, but for others a dream yet to be made into a reality. But as ombudspersons it is our duty and desire to help our governments to work toward that objective or dream. It is equally important that well-established democracies continue to maintain their achieved level of democracy at the same time leading and supporting the growth of democracy around the world.

Papua New Guinea is a democracy but some academics – the theologians of society who do have their part to play are claiming that it is a ‘disorderly democracy’ [1]; Disorderly Democracy: Political Turbulence and Institutional Reform in PNG; RJ May.

The claim, if true, raises the question – which is the subject of my paper, ‘ Can the PNG Ombudsman survive or will he become a disorderly ombudsman performing under a disorderly government? Asked another way, could the PNG Ombudsman who is mandated to perform the classical ombudsman duty on the one hand and enforcing the leadership code of ethics on the other hand continue to tolerate the disorders and continue to exercise its’ investigative functions and be relevant in the midst of all the claimed disorders but most importantly and above all can the ombudsman institution in PNG survive?

“The ombudsman is a part of the system of administrative law used for scrutinizing the work of the executive. He is the appointee not of the executive but of the legislature. The ombudsman enjoys a large measure of independence and personal responsibility and is primarily a guardian of correct behaviour. His function is to safeguard the interest of citizens by ensuring administration according to law, discovering instances of maladministration, and eliminating defects in administration. Methods of enforcement include bringing pressure to bear on the responsible authority, publicizing a refusal to rectify injustice or a defective administrative practice, bringing the matter to the attention of the legislature and instigating a criminal prosecution or disciplinary action” [2]; Encyclopaedia Britannica Library – Administrative Law and further: -

A condensed description of who the ombudsman is also explained in IOI 2000 communiqué which states as follows:- “…the role of ombudsman [provides] a mechanism which can balance the fundamental requirements that governments must be able to govern but with appropriate accountability” [3]

Whether we are commissioners or ombudsman the above are our job-descriptions either detailed, or described in about twenty(20) words.

Allegations that are sustained after our investigations are those we believe (one of or a combination of) were unlawful in nature, unreasonable, oppressive or unjust, based on mistake of fact or law, improper motive or an in-appropriate consideration given to it, an administrative error was made, that there was discrimination involved, an infringement to human right or the administrative decision was simply wrong.

Legal safeguards imbedded in laws are not observed and complied with by the bureaucracy and its’ masters thus the above decisions by the ombudsman. So what are the legal safeguards?

“Statutory directions addressed to the executive authorities may impose absolute duties, or they may confer discretionary powers authorising a specific action in certain circumstances.” “ The statute lays down the conditions under which it is lawful for administration or bureaucracy to act and confers on the authorities the appropriate powers, many of which involve an element of discretion “ [4]; Defining Principles of Administration Law, Encyclopaedia Britannica, Library.

To any agent of government or a member of the public who are becoming more and more educated in this age, and not forgetting our academics this is easy and straight forward and for our purpose we simply say – do what the law says, no more no less and if you have to use your discretionary powers, use it lawfully, reasonably, justly with proper considerations and so forth.

Administrative law, regulations or practices therefore, and the role of them or why those laws exist is to control bureaucracy, and of-course the control also extends to the work and conduct of the ombudsman.

Government functions everywhere are expanding, and in proportion to that the bureaucracy must increase in material resource allocation, their powers enlarged in scope and depth in accordance to the expansion of the functions.

Imagine for a moment the magnitude of our work now when trends as such are occurring in our jurisdictions as we speak. Especially, when we know the continuing existence of some bad characteristics of bureaucracies such as: -

• an excessive sense of self-importance/indifference to the feelings or convenience of citizens

Ombudsman tolerance is always tested when these characteristics are persistent in the bureaucracy whilst governments continue to create new functions, consequentially the ombudsman must adapt and cope to meet the additional function in the agencies of government.

Much, we are witnessing in our life-time, in terms of new countries in its’ true sense and old countries under other types of regimes desiring their peoples to have a right to vote for a representative government. The history of suffrage, or franchise has changed from limited and privilege groups to universal adult population and this dramatic changes has taken place because of the varying and changing political, social and economical world dimensions, even also as results of armed conflicts especially during the end of the 20th century and the beginning of this 21st century.

The influx to adopt representative democracy is in effect empowering and allowing individual persons to compete in a public office and in the market economy; have the freedom of speech and be tried under the transparency of the rule of law. The ideology is to apply the principle of the rule by the people, individually and collectively making their decisions for their future benefits as individuals, society and state.

Papua New Guinea is a representative democracy and the citizens enjoy a lot of basic freedom – all that the imported democratic beliefs, concepts and ideals calls for and offers. Between the first parliamentary term in 1972 (each term is 5 years) and now which is the 8th parliament we have had 11 governments and 6 Prime Ministers and all governments have been coalitions.

National, provincial and local level government elections have been held since 1972 (the first since gaining self-government and independence). For the first time in 2002 national and local level government elections were held simultaneously. A new Organic Law on Provincial and Local Level Government in 1995 brought to an end separate provincial elections, because the legislation no longer provided for it, and today provincial assemblies do exist to govern our 19 provincial governments and 3 city councils, and the members are those elected as presidents of rural and urban councils and members of the national parliament.

The conduct of the 3- level-government elections has been, from the beginning to the last 3 or 4 elections, that of being orderly to disorderly. Perhaps, that might be one reason why the academics are saying that PNG is a disorderly democracy. A case of ‘ the means not suppose to justify the end’.

The claim that PNG is a disorderly democracy is provocative and challenging and especially for me to deny the claim outright would be an attempt to conceal and erase my own knowledge and understanding, contribution (very limited to influence any policy change) and participation of the past as a field officer and an administrator who has watched the events as it unfolded over the years since our independence in 1975.

Disorderly democracy seen and described by the academics do exists. Non- compliance to the rule of law, regulations, procedures and guidelines is being experienced; increase in corruptive activities; government ineffectiveness and political instability are the four (4) critical benchmarks that the World Bank used to measure PNG’s governance rating in 2002. And PNG Governance Rating is Minus One(-1) World Bank Source, 2203a PNG. [5]

There is an agreement therefore in the analysis by both the academics and authoritative institutions like the World Bank that PNG indeed has governance problems. The Ombudsman Commission of Papua New Guinea acknowledges the fact that, our country does have governance problems. In acknowledging that factor our strategic vision for the sixth year now has been/ is still is ‘ Good Leadership and Good Governance’ [6]. For the past six (6) years our annual business plans has been geared and constructed and implemented toward meeting that strategy. This vision, I believe will still be relevant for many more years to come.

Papua New Guinea did enjoy stability on all the four (4) counts above during the first 10 years after independence. To return PNG to a stable level is not only the desire of the Ombudsman Commission, it is also our mandate when dealing with our leaders under the Organic Laws and the Constitution.

A lot has happened in Papua New Guinea politics and administration that indeed is diminishing safe democratic levels, one liking to a never ending theatre production, with no controlled ending in sight, “… is being played out with a whole hosts of

interesting characters and plots – villains, heroes, major disasters, setbacks, drama, hope, resurrection and restoration”[7]; - Managing change for high performance – NPF a case study MD, R.Mitchel. Some events and occurrences below in brief summarises what I mean:-

• degree of votes of no – confidence in national, provincial and local level government

Identity Clashes/ weakened traditional political structures – reasons for disorder?

Papua New Guinea’s 800 and more identities (tribes, clan, languages) were put together to form a national identity before self-government and independence. During those early years of framing a democratic constitution, the players, a dozen or more of them were statesmen, who were noble in their drive and vision for a future one nation.

Very few statesmen remain active today, (others have died) those who must keep alive the vision. Nationalist we have many and they are those whose scope and efforts are concentrated on their electorates for their political survival.

In the bureaucracy, the stock from the old school, are few in numbers too. Newer bureaucrats, most also nationalist, provide to PNG less comprehensive and progressive innovation and provide poor maintenance of management and governance. There is a mixture of knowledge and experience gaps everywhere in the stratum of all government departments. It tells heavily on the overall performance of government.

Pacificators, Christian missionaries, planters and settlers, gold prospectors of different nationalities had their share of breaking down tradition political structures right from the beginning. Whilst stamping out cannibalism and tribal fights using the strongest possible means, other better parts of cultures dealing with beliefs and rules of control suffered the same fate. Come independence, and some years after that, the pride to look up and up-hold a national identity and be proud of it found no sound basis nationally or communally and the vision of one country, one people, and one nation started to diminish. For eg. Apart from school children, very few of us can sing our national anthem – start to finish! A National Anthem , when sung must express deep glow of emotions in the heart, developing a feeling of pride and belonging to a people and place where there is history, culture and value in life.

Village societal strengths have been weakened and remain loose and for one to return to the comforts and security of a village today is hardly that of comfort and security.

The West minister system of government continues to clash with the modernised traditional and chieftain rulership and authority. The older societal leaders have been replaced by modern bred, shaped and indoctrinated leaders who are the elites, with educational achievements in all modern disciplines, businessmen, politicians in the 3 tier governments, sportsman, the clergy, youth, women and NGO’s.

It is my prediction that; two generations from today, many men and women (esp. in urban centres) will not be able to identify himself/herself in any of the 800 societies in PNG.

Tolerance ought to be described first so that we can appreciate this topic of ombudsman tolerance. Tolerance is a human’s, inner, emotive attitude that every person is entitled to. Intolerance is an attitude that every person is also entitled to. It is when a person converting that inner attitude into a social action, that we find the difference between a person who is tolerant and the other who is not. And therefore among the human spices, I would like to state that ombudsman is a tolerant group of officials. They must be or else they should not be here, because ombudsman or commissioners have been selected because they possess the ability to withstand or endure the unpleasant social action of others.

• those in authority that gives you the mandate and provide you the material resources to work with

“it requires of the ombudsman the patience of a saint, the tact of a diplomat and the courage of Hercules.” quoting Sir Brian Elwood, in his paper at the IOI recently [8].

And further, a reminder to our story of the bamboo – resilient and strong, bending in the wind but not breaking.

Each one of us, an advocate of human rights or however named with differing functions empowered to us by mandate has varying degree of tolerance. And this degree of tolerance proportionates to your individual work environment. No work setting, divided by kilometres of sea and other divides are similar to each other.

Investigations are our job, since the beginning of the ombudsman concept in 1809 in Sweden. A duty one must perform daily, big or small, simple, complex, and touchy and no matter the who’s and the sizes of organisations involved – we do them all. The conclusion of investigations end the same way for all of us - identifying wrong conducts and practices and recommendary actions suggested to the government agency to implement or otherwise.

Thirty (30) years on, will the PNG Ombudsman survive? The answer –which is the crux of this paper, is, yes, the PNG Ombudsman will survive. Two (2) reasons for this confident assertion. The first is that the legislative mandate and the provisions providing the establishment of the institution and appointment of the ombudsmen (Chief and 2 ombudsmen) to provide the ombudsman service is solidly entrenched in the Constitution and Organic Laws which are the highest in the hierarchy of laws.

Any amendment or abolishing of the whole or in part must be by a ¾ majority vote in parliament on three different sittings.

The other safety mechanism is that, the ombudsman’s duration of office has different starting/ending terms of office, and the law disallows government in abolishing the office (just to close the shop) of the ombudsmen if there is an incumbent serving in the office.

On top of the two (2) reasons why the Ombudsman in PNG will survive is the enormous public support we are riding on at this point in time. This is a bold statement without any formal survey results. The opponents to our work have been and continue to be the politicians – the people representatives, and top bureaucrats, especially those individual leaders whose conduct has been the subject of ombudsman investigations. Past attempts to abolish the Ombudsman Commission never seem to have gained much support at all.

Our constitutional framers are applauded in their vision to translate the peoples desire to implant deeply in the constitution, the institution and its’ governing laws and the stringent process of appointing the members of the Commission.

Previous and present ombudsmen and staff are commended in maintaining the professionalism and the integrity of the current Ombudsman Commission of Papua New Guinea.

Balancing culture considerations of the Pacific, Melanesia and the PNG way of dealing with economical, social and political issues, against or complimentary with the adopted laws and the principles of capitalism has always been and will always be a challenge.

The classical ombudsman duty is not the only duty the PNG ombudsman must grapple with. The other duty in our mandate is the enforcement of The Leadership Code, which is a code of conduct. These duals – one, friendly in nature, the other, the Mike Tyson type may have in some respect limited the PNG Ombudsman’s’ extensive government body investigation in search of legislative and regulative loop-holes, identifying root causes of bad practices and with full cooperation of chief executives, effectively actioning ombudsman recommendation for consideration and change.

The lawmakers and the executive governments during the 7th and 8th parliament has woken-up to the reality of missing the plot in good governance at the higher peril of loosing the freedom of democracy. World pressures after Sept 11 and action on terrorism have compelled every independent country of the world to look within and change settings and strengthen the rule of law in character and operation.

PNG has done well in that regard. Five (5) legislative actions before and after Sept 11 mentioned below has begun to set a tone for political stability, which should pave the way to an orderly democracy: -

- Superannuation Fund law. A change in which political control has been removed. The result is extremely successful right now.

- The Integrity Law of Political Parties. Enabling legislation enacted and in-force; addressing numbers of political parties: for political parties to enjoy the benefits of state funding and limit horse trading during the voting of the Prime Minister and that individual vote to the election of the Prime Minister must remain for 5 years – the length of the term of the parliament (apart from the other provisions).

Forty-two (42) political parties registered, when the law came into effect before the 2002 National elections but only 19 were successful with members ranging from 1 to 20. Two (2) parties have been de-registered since, because of non-compliance to provisions of the law.

The law was tested in July 2002 in the voting of the Prime Minister and it was successful and overall it is gaining respect, observance and compliance.

- Public Service Commission. Political influence and control over appointments/discipline of public office-holders and servants is now curtailed. Teeth to bite have been restored to the three (3) members of the Public Service Commission.

The appointment of Commissioners is now on par with the appointment of ombudsmen – the remedied action now providing highest security of employment to the three (3) constitutional office-holders.

- Limited Preferences System of Voting. This has come into effect from the former first- past- the- post, which often brought into parliament members with a minimal percentage of votes from the electorates.

Trials in 2003/2004 elections, although very expensive to run is still ringing with success. Thumbs up here, because this is making changes in the attitude of candidates and voters (attitude in PNG is a big problem) alike that election violence, bribery and destruction to properties will not benefit any community in the long run.

- the ECP PNG/Australia Act. The most recent approved law, initiated by both governments across the Coral Sea has the intention of or for the purpose to:

“… address core issues in PNG in the areas of governance, law and order and justice, financial management, economic and social progress as well as capacity in public administration, including the Royal Papua New Guinea Constabulary”. Article 2, titled Purposes under the Act.[9]

There is no doubt about the objective of the ECP, which is in operation for about 2 months now, and is already showing some sense of security and confidence to the residents in Port Moresby and the support for this arrangements is growing.

The only contentious matter is to do with the immunity (word immunity is not in the act at all – but the implication is clear) provisions. This matter is now before the Supreme Court. The Ombudsman Commission took a preliminary position - pending outcomes but it is clear that our extensive use of investigative powers is on balance and soon will be tested.

With respect to our politicians in both countries, ombudsman input and advice were never sought before the enactment of this law. If there were any major threat to the PNG Ombudsman’s extensive use of it’s investigative powers in the past 30 years – it would be this immunity provision in the ECP Act. It goes to the very heart of a Sovereign State, which the PNG Ombudsman has made an oath to protect.

Other ongoing assistance – Papua New Guinea, as a developing nation also enjoys ongoing assistance from international friends and sympathisers, including Australia, which provides most aid assistance. Ausaid as it is called is now rightly adjusting it’s assistance to fit and compliment within the one and only national planning process (under the Department of Planning ) an approach sadly missing in the past.

To conclude ladies and gentlemen, ombudsman tolerance is as strong as the mandate given to you and I and is equally as strong as the person enforcing the mandate.

The necessary ingredient to progress in the performances of ombudsman duties is to secure the support of the politicians or the bureaucrats whose action we are obliged to investigate. Support is given to us only when they understand our role – so we as ombudsman must maintain an active link with those important stakeholders

The media and the general public as well are other important stakeholders in the fight against mal-administration, corruption and government disorders; therefore they too must be informed and made to understand the role of the ombudsman. In Papua New Guinea, we receive a lot of support from the media and the public, but not so much from politicians and senior public servants.

The PNG Ombudsman has come along way and though the future of our country’s governance is not stable as many of us and our neighbouring countries would like to see and think, but we are confident we can tolerate all the disorders and be relevant as the citizens protectors and assist our leaders to lead Papua New Guinea toward an improved and a orderly society.

1. R J May: Disorderly Democracy : Political Turbulence and Institutional Reform in PNG (ANU Publication on state, society and governance in Melanesian)

3. Anand Satyanand – NZ Ombudsman : How will Ombudsman Institution need to change for government of the future APOR paper Madang, PNG 2003.

4. Encyclopaedia Britannica Library on Defining Administrative Principles of Law

7. R. Mitchel, MD NPF – Managing change for high performance NPF a case study.

10. J. Bennett : Roots of Conflict in Solomon Islands though much is taken, much abides : legacies of tradition and colonialism. (ANU publication on state, society and governance in Melanesia)

11. D. Hegarty; R May; A. Regan; S. Dinnen; H. Nelson and R. Duncan : Rebuilding State and Nation in Solomon Islands : Policy options for the Regional assistance Mission (RAMSI) (a ANU publication on state, society and governance in Melanesia)

Ombudsman Commission of Papua New Guinea - Speech 10 February 2005

Ombudsman Commission of Papua New Guinea - Speech 10 February 2005