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Ombdusman Commission of Papua New Guinea - Speech 23 October 2006

________________________________________________________________________

FIGHTING CORRUPTION AS A PUBLIC SECTOR OMBUDSMAN

IN PAPUA NEW GUINEA.

A PAPER PRESENTED BY

OMBUDSMAN PETER MASI

AT THE

FIRST ANNUAL CONFERENCE AND GENERAL MEETING OF THE

INTERNATIONAL ASSOCIATION OF ANTI-CORRUPTION AUTHORITIES.

Grand Epoch City, Beijing. PR of China

Introduction

We are at the eve of establishing the International Association of Anti-Corruption Authorities – a body that would have a Constitution that should express the global importance of fighting corruption. As active members of the United Nations our presence is sufficient to state our allegiance to fight corruption as a group on mutual cross-border issues and our attendance is a response to facilitating the implementation of the United Nations Convention against Corruption which came into force in December 2005.

The heart of mankind - global it is by nature is ever deceitful, and there seem to be more evil and less good happening around us. Corruption is simply putting into action a dishonest desire to gain material wealth, other favours, fame and power. It is global and it requires global organizations with firm commitments and appropriate strategies to fight it. We fight or we shall be consumed by this menace which destroys people’s dignity and lives and let us count ourselves and secure the services of others to help us fight corruption.

I am a practitioner in fighting corruption in my job as an Ombudsman in Papua New Guinea – a country with a population of 5 million. I am honoured by the invitation to speak; for this I want to thank the Prosecutor General, Supreme People’s Procuratorate, People’s Republic of China.

To share my beliefs and thoughts on the eve of creating a global association is a pleasure for a cause dear to me as I witness my resource-rich developing country being plundered by internal and external forces in the name of democracy and development yet without any significant gain for the people and the improvement of their living standard. I shall try to provide an overview of the Ombudsman Commission of Papua New Guinea, what other international associations the organization - I work with, is a member to, what we do as public sector ombudsman and the difficulty and some observation I wish to make as one of a global member in the fight to control and reduce corruption levels within the government in Papua New Guinea and in the Pacific.

First, it is appropriate that I explain the concept of an Ombudsman, and the origin of its world-wide usage and application.

Definition/Origin and Concept of Ombudsman Commission

‘The ombudsman is a part of a system of administrative law used for scrutinizing the work of the executive; an appointee of the executive but of the legislature; enjoys a large measure of independence and personal responsibility and is primarily a guardian of correct behaviour. His/Her 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 justice or a defective administrative practice, bringing the matter to the attention of the legislature and instigating a criminal prosecution or disciplinary action’ (Encyclopaedia – Britannica)

The name Ombudsman is Swedish (means defender of citizens) and it originated there in Sweden in 1809 and the concept targets public sector officials only and not the officials in the private sector.

Papua New Guinea Ombudsman Commission

The Papua New Guinea Ombudsman Commission is a Constitutional Office with a  three(3) member Commission headed by a Chief Ombudsman and two(2) Ombudsmen. Appointed by a bi-partisan Committee, each incumbent serves a term of six (6) years and the only power the Chief Ombudsman has is the power to call and chair meetings.

A 3-member commission is desirous – it simply is applying the traditional Melanesian society of the Pacific and it is a concept of participation and consensus on issues that affect people and lives. The Ombudsman Commission has been in existence since 1975, the year our country got independence.

The Papua New Guinea Ombudsman Commission is an affiliate of the International Ombudsman Institute (IOI), a forum available to members for exchanges, dialogue and policy information and guidance. Member countries of the Institute are Public Sector Ombudsman and Industry Ombudsman such as Housing, Banking etc., and they meet every four years to deal with administrative, governance and corruption issues to help members to be relevant in the fight against wrong conduct – the common name used by the classical ombudsman. Wrong Conduct is a corruptive action taken by a person.

The International Ombudsman Institute comprises seven (7) regions, of which we are members of the Australasia-Pacific Ombudsman Region (APOR) – the only 2 Asian member institutions being from Hong Kong and Taiwan. According to the IOI books the APOR Ombudsman Offices are more effective in coordination and dialogue and we hold annual conferences where we discuss issues that should benefit us mutually.

Constitutional Mandate/Roles and Functions

The Constitutional Mandate. The overarching Constitutional mandates speaks of the Ombudsman Commission ensuring that all government bodies are responsive to the needs and aspirations of the people; helping in the improvement of the work of government bodies & the elimination of unfairness and discrimination and helping in the elimination of unfair or otherwise defective legislation and practices affecting or administered by government bodies.

The above which comprises three quarters of our mandate is the classical or traditional role of an Ombudsman – investigating, resolving and providing reports with recommendations about the wrong conduct of government agents and government bodies.

At our independence (1975), our National Parliament (Assembly) adopted a ‘Code of Ethics’ legislation (which applies to certain categories of leaders) and this became the fourth mandate which has been entrusted to the Ombudsman Commission to supervise and enforce and this is done through the leadership investigations on misconduct allegations and where there is a prima-fascia evidence the particular leader is referred to the Public Prosecutor for possible prosecution.

The enabling legislations giving further effect to the Constitutional mandate are 2 Organic Laws; The ‘Organic Law on the Ombudsman Commission’ ( OLOC- the traditional ombudsman function) and the ‘Organic Law on the Duties and Responsibilities of Leaders’ (OLDRL) or as is commonly known as the Leadership Code in Papua New Guinea. Heads of Government Bodies are informed when investigations are conducted under the OLOC whilst investigations under OLDRL are private meaning that any Leader under investigations is not notified until the time where he/she is given a right to be heard. Under both Organic Laws we can cause own motion investigations and according to our hierarchy of laws, the Organic Laws ranks the 2^nd to the Constitution whilst Acts of Parliament are ranked after the Organic Laws.

Fighting Corruption in Papua New Guinea

Firstly, Prime Ministers in Papua New Guinea under the Commission of Inquiry Act sanctions the establishment of Commissions of Inquiry to look at scandals in government operations. It is a faster method of exposing and preventing the spread of corruptive activity in a sector of government. Before independence we have had 5 whilst after independence we have had 27 and there is 1 ongoing at the moment.

This shows a commitment at the political level to fight corruption although what is lacking is the ability to implement the recommendations made through these Inquiries.

Secondly, the Ombudsman Commission is one of other National Institutions (to name a few such as the Police, Auditor General, Internal Revenue Commission and Public Service Commission with their own rules of mandate) in the country bestowed with legislative powers to investigate allegations of corruptive decisions and actions by leaders, government agents and bodies.

Our Constitution and Organic Laws expresses concurrent investigations with Police and informal exchanges of information between other watch-dog investigators.

The Complaints and Administrative Investigations conducted under the traditional function (Organic Law on the Ombudsman Commission) of the Ombudsman end up as resolved cases or in other cases reports with recommendations are produced for Government Bodies to accept and implement.

Leadership Investigations on the other hand are conducted under the Organic Law on the Duties and Responsibilities of Leaders and these are forwarded to the Public Prosecutor (if a leader has a case to answer) – who is an independent Constitutional Office-holder. He decides whether the case has merits before he asks the Chief Justice to appoint a Leadership Tribunal. The Public Prosecutor can instigate criminal proceedings using facts in the Ombudsman Commission statement of reasons but is restricted in law and cannot use the Ombudsman Commission documents as court evidences.

Fourthly, the Ombudsman Commission, with 3-4 other Government watch-dog.

Institutions are members of the Community Coalition Against Corruption (CCAC) – an informal body which partners government watch-dog agencies and Non Government Organizations (NGO’s). The group is effective in undertaking massive awareness about the quality of leadership and general government conduct throughout the country and stands ready to blow the trumpet on controversial issues. The group comprises Civil Society, individuals, Media Council, Council of Churches and Transparency International.

The Judiciary system in the country is also effective and this provides some comfort to our people and this does help in the overall fight against corruption.

Greenpeace-type endeavours is promoted in the country through environment protection groups, one to be mentioned here is the Eco- Forestry Forum.  

Difficult Fight in a Developing Country

Corruptive behaviour (should call it an epidemic) knows no boundaries and is not restricted to government officials. We have difficulties (in resources and international/domestic network) in netting companies and the officials that deal in collaboration with our leaders. The effects of corruption as we know have consequences in the long and short term and it is destructive to the growth of strong and sustainable societies. There is a cause of much concern in Papua New Guinea when our 800 or more tribes and languages are diminishing in value and strength. Population increases, law and order problems including ethnic animosities and the prevalence of HIV/Aids is an additional burden we consider in the fight against corruption.

In the name of democracy, trade, research and development our resource-rich country has attracted increased competition among multi-national corporations as well as providing  leaders with ethical deficiencies the urge to capitalize on the situation without regard for loyalty to country and for the greater public service delivery according to their given mandates. We have mineral exploration and mining companies, logging companies and trading companies operating as subsidiaries from abroad. The rules of engagement do not favour us as a developing country and our Leaders and government bureaucracies are at the mercy of the influences (good and bad) of trade and development policies.

We are a new, new country! I call it a new, new country because we want to build and design everything new or develop a new policy yet we are not good at completing the incomplete project or maintaining the existing project. We would like the donors to complete our incomplete project and assist us to maintain the existing project!

Some years after we gained independence, our Government adopted a “Look North Policy”. This policy looks to these parts of the region as alternate trading/development partners and the principle behind the policy was to be mentored and shown ‘how to fish’ and not be fed from the ‘fish already caught! That policy has merits but today, the country is facing problems of fair partnership in trade and development.

The Ombudsman Commission does not lack in legislative powers under the Constitution and Organic Laws to carry out its function effectively, even after 31 years of operation. However a legislation that will enhance our operation is the enactment of Freedom of Information Act or a Whistleblowers Act. From experience this law will help us to protect those who give us information and the area we lack (like everybody else) is resources and the relevant skills required on the day of investigations.

During the forthcoming months we are looking forward to the operation of the Crime Proceeds Regulation (recently passed in the assembly) to comprehensively deal with perpetrators of crime in our country – and this includes Leaders who are processed under the leadership proceedings. It is our wish that the application of this law will further advance our cause of strong leadership and good governance.

A recent TI documentary that provide interest reading speaks of 30 biggest exporting states which accounts for 80% of the world exports are homes to firms that are most willing and ready to pay bribes in low-income countries!

How sad it is but this is true now in my country and just the thought of it is enormous in dimension and what a fight we have in our hands and the fight has to go beyond the domestic scene and this becomes extremely difficult.

Leadership and Government ability to accept all situations and challenges and make it work is the vision of the Ombudsman Commission of Papua New Guinea. We want to develop strong leadership and promote good governance – as stated in our 5 year strategic plan. We‘d like our leaders to separate their decision making from what they can gain personally as opposed to that of carrying out their public responsibility where benefits are spread out to the wider community.

What should a developing country gain from such Forums as this?

I read from a commentary of the Transparency International website;

                ‘ International anti-corruption conventions and instruments are increasingly important in a world in which states and private actors are more and more interconnected through travel, communications, trade, investments and financial transactions. The range of anti-corruption conventions and instruments in existence today are the manifestations of an international consensus that emerged in the early 1990’s identifying corruption as an important problem needing to be addressed and in particular requiring internationally agreed solutions.

                 Anti-corruption conventions embody binding agreements betweens states on standards and requirements in the prevention, detection, investigation, and sanctioning of acts of corruption, including better cross-border cooperation in these areas.’

Immigrants wearing coats of traders, miners, builders, scientists,  missionaries, technologists, financiers and clerks help build economies all over the world either as individuals or as corporate entities and they are a blessing in general and whilst each compete for territorial increases and in the race for supremacy and profit/others, governments of the developing countries are subjected to the policies of these public and private actors and loose out in fair negotiation, respect for domestic policies and loose the independence as sovereign nations. Multi-national companies and individuals who apply any degree of corruption must be dealt with by the anti-corruption bodies nationally with the assistance of the international counter-parts as is discussed in these forums using the frame work provided for by the global anti-corruption conventions and agreements.   

References

1. Constitution of Papua New Guinea

2. Government, States and Labels –SS and Governance in Melanesia Series,

                                               Discussion Paper 2006/1; Hank Nelson (ANU)

3. TI Website (www.transparency.org )