The proposed law on the Independent Commission Against Corruption now currently before the Parliament raises serious questions into its operations and functions once it is passed by the Parliament.
The Ombudsman Commission pursuant to Section 19 of the Constitution is obliged to review and point out anomalies’ of any law that is drafted, in the passage of being passed or passed by Parliament. The Ombudsman Commission has the power under Section 218(b) of the Constitution to file a Section 19 Supreme Court Reference to question the validity of the laws.
In this regard and in the matter of the Organic Law on the Independent Commission Against Corruption (OLICAC) the Chief Ombudsman Richard Pagen presented a submission on the Examination of the Organic Law as per invited by the Constitutional Laws Acts & Subordinate Legislations Committee (the Committee).
The Chief Ombudsman pointed out three (3) major concerns regarding the OLICAC:
- Duplication of roles
- Not in Harmony with the Constitution
- There is no independence
- To conduct independent investigations;
- To prosecute major (serious fraud) or high profile crimes; and
- To raise awareness and education and prevention.
However, after reviewing the OLICAC, the Ombudsman Commission notes that these recommendations have not been considered at all in this proposed law.
Certain provisions in the proposed law encroach into the functions of the Police, the Public Prosecutor and the Ombudsman Commission. There will be duplication of roles and functions under proposed law.
A. SECTION 3 – APPLICATION OF CRIMINAL CODE (OLICAC)
Section 3 of the OLICAC states:
The Criminal Code Act applies to all offences under this Law.
This section is a duplication of the functions of the Police Force. The Police are enforcers of the Criminal Code Act. Ch.262
What is the Police Force going to do if ICAC takes up all its functions and purpose?
B. SECTION 5 – CORRUPT CONDUCT (OLICAC)
Section 5 of the OLICAC states:
(1) Conduct of a public official is corrupt conduct if —
(a) the conduct constitutes or involves, or is engaged in for the purpose of —
(i) dishonestly exercising official functions; or
(ii) abusing official functions; or
(iii) exercising official functions in a way that is not impartial; or
(iv) misusing information or material acquired in the course of official functions; or
(v) obstructing, interfering with or perverting the administration or the course of justice; and
(b) the conduct could amount to a disciplinary offence or a criminal offence.
(2) The conduct of a person (whether or not a public official) is corrupt conduct if –
(c) the conduct affects or influences, or could affect or influence, any of the conduct mentioned in Subsection (1) by a public official; and
(d) the conduct could amount to a disciplinary offence or a criminal offence.
(3) The conduct of any person (whether or not a public official) is corrupt conduct if the conduct-
(a) allows, encourages, causes, aids, abets, incites, induces, counsels or procures or assists to conceal corrupt conduct; or
(b) is an attempt, preparation or conspiracy to commit corrupt conduct; or
(c) is directly or indirectly connected with, or is a part of a course of activity involving corrupt conduct.
(4) Conduct may be corrupt conduct regardless of whether the conduct or part of the conduct occurred before the commencement of this Organic Law.
It is also mentioned in Section 220C of the Constitution. The purpose of the ICAC is to contribute, in co-operation with other agencies to preventing, reducing and combating “corrupt conduct”.
The definition of what a “corrupt conduct” is, in Section 5, is quite general. A conduct may amount to a disciplinary offence which concerns the moral conduct or integrity of a public official.
A corrupt conduct refers to moral conducts which if not adhered to will amount to a disciplinary offence, hence, may not necessarily be criminal offences.
One of the major roles of the Ombudsman Commission (OCPNG) as per Section 218(d) is to supervise the enforcement of the Leadership Code.
The Organic Law on the Duties and Responsibilities of Leadership (OLDRL) which is part of the Organic Law on the Ombudsman Commission (OLOC) covers the responsibility of leaders.
The responsibilities of leaders in Part II of OLDRL if not adhered to by leaders would amount to a “misconduct in office”, most of these “misconducts in office” can come under the definition of “corrupt conducts” and are definitely disciplinary offences which can also be regarded as criminal offences (bribery, misappropriation, stealing etc.)
These “misconducts in office” by the leaders that OCPNG investigates are then referred to the Public Prosecutor for further action.
It appears that the main investigative function of ICAC is investigating corrupt conducts which the entire OLICAC relates to.
It is recommended that the words “corrupt conduct” relating to disciplinary and criminal offences be clearly stated as the words “misconduct in office” which OCPNG refers to in all its leadership integrity cases/investigations.
It is also noted that the criminal elements of a corrupt conduct are not catered for in the OLICAC.
The initial recommendation by the Commission was for the ICAC to deal with the criminal aspects (serious fraud high profile criminal cases) of a public official’s conduct and not a public official’s moral conduct.
ICAC as an organisation that should complement the work of OCPNG and other constitutional offices by concentrating on investigating high profile criminal cases which involve persons (non-public officials) and private entities that link to a corrupt conduct by a public official and or public body.
This section comes under the jurisdiction of the OCPNG therefore all of Section 5 should be removed or reworded to define corrupt conducts that are criminal in nature.
Section 5 impedes Section 27 of the Constitution, “Integrity” of person, Office and the position, therefore is to be removed in its entirety.
Furthermore, Section 220D of the Constitution mirrors the functions of OCPNG.
ICAC will be performing the function of OCPNG as stated under Section 220D(a) of the Constitution when it refers “to receive and consider complaints alleged or suspected corrupt conduct and investigate such of those complaints as it considers appropriate”.
ICAC will also be performing the function of OCPNG as stated under Section 220D(f) of the Constitution when it refers a matter after its investigation is of the opinion that a person has committed a corrupt conduct to the Public Prosecutor together with a “Statement of Reasons” for its opinion.
C. SECTION 13 – COMMISSION OFFICERS (OLICAC)
Section 13 of the OLICAC states:
(1) Commission officer means —
(a) the Commissioner; or
(b) a Deputy Commissioner; or
(c) a member of the staff of the Service; or
(d) a Commissioner investigator; or
(e) a Commissioner prosecutor; or
(f) a person seconded to the Service; or
(g) a legal practitioner engaged by the Commission.
(2) For the purposes of Part XIII and for other offences under this Law, “Commission officer” includes a former Commission officer.
Section 13 contradicts Section 220B of the Constitution, Section 220B states that ICAC shall consist of one Commissioner and two Deputy Commissioners and there shall be an Appointments Committee. Commission Officers under Section 13 comprise of seven persons. Constitutional Officer holders are to be separated from Officers.
The Commissioners are Constitutional Office-Holders and as such, their salaries, allowances and benefits, financial and otherwise are determined by the National Parliament in accordance with recommendations made by the Salaries and Remuneration (SRC).
That is due to the combined effect of Sections 126A(3)(d) and 216A(4) of the Constitution.
The Officers will be subject to the Public Service General Order until ICAC determines its Staff Terms and Conditions.
Extract from Attachment 2:
Initially OCPNG proposed that the ICAC Advisory Committee membership to include two members of the public to come from independent bodies such as TIPNG and Council of Churches.
It was also proposed that to avoid potential conflict of interest (should OCPNG receive complaints against ICAC), the Chief Ombudsman be removed from the Advisory Committee and be included in the Appointments Committee. Although it was proposed that ICAC’s Appointments Committee that is established pursuant to Section 133 of the OLIPCA is comprised of:
- The Prime Minister; and
- The Chief Justice; and
- The Chief Ombudsman; and
- The Leader of Opposition; and
- The Commissioner of Police.
With the quorum of all 5 members, the Chief Ombudsman is not a member and the quorum is 3 members (Sections 134 and 136 of the Organic Law).
OCPNG has records of integrity on potential candidates who would be vying for considerations in the three positions.
D. SECTION 34 – INVESTIGATION AND PROSECUTION OF CORRUPT CONDUCT (OLICAC)
Section 34 states:
(1) Without limiting how the Commission may prevent and reduce corrupt conduct, the Commission may —
(a) investigate alleged or suspected corrupt conduct, including offences mentioned in Subsection (2), and perform functions or exercise powers under Parts IV, V and VI; and
(b) prosecute indictable offences relating to corrupt conduct in accordance with Part VII.
(2) The Commission may investigate —
(a) offences under this Organic Law; and
(b) Other offences under the Criminal Code Act 1974 that fall within the definition of corrupt conduct; and
(c) offences under any other laws that fall within the definition of corrupt conduct.
This section duplicates the functions of the Office of the Public Prosecutor. ICAC to prosecute offences under the Criminal Code Act 1974 takes away the current role of the Office of the Public Prosecutor.
What is the Office of the Public Prosecutor going to do if ICAC takes up all its functions and purpose?
What are the provisions in the Constitution that this provision offends? This is an Organic Law and the Constitution establishes the offices and functions of the Public Prosecutor.
ICAC will be performing the function of Public Prosecutor as stated under Section 220D(g) of the Constitution where it states “to exercise such prosecution powers concerning or relating to corrupt conduct as may be prescribed by or under an Organic Law.”
E. SECTION 45 – DUTY TO NOTIFY COMMISSION OF POSSIBLE CORRUPT CONDUCT (OLICAC)
Section 45 states:
(1) Subject to Subsections (3) and (4), notwithstanding any other Act, any person to whom Division 111.2 (leadership code) of the Constitution applies is under a duty to report to the Commission any matter that the person suspects on reasonable grounds concerns or may concern corrupt conduct.
(4) The Commissioner of Police, the Public Prosecutor, the Public Solicitor, a Judge, the Chief Magistrate or a member of the Ombudsman Commission is not under a duty to report to the Commission, any matter that concerns or may concern corrupt conduct if he becomes aware of the matter while performing official duties, unless the matter concerns or may concern corrupt conduct of —
(a) in the case of the Commissioner of Police — a member of the Police Force; or
(b) in the case of the Public Prosecutor — a member of the staff of the Office of the Public Prosecutor; or
(c) in the case of the Public Solicitor — a member of the staff of the Office of the Public Solicitor; or
(d) in the case of a Judge – another Judge, or an officer or employee of the National Judicial Staff Service; or
(e) in the case of the Chief Magistrate — a Magistrate or a member of the staff of the Magisterial Service; or
(f) in the case of a member of the Ombudsman Commission —another member of the Ombudsman Commission or an Officer or employee of the Service of the Ombudsman Commission.
Since Section 45(4)(f) of the OLICAC concerns OCPNG, the intention of this section is queried. This provision offends Section 217(5) of the Constitution, where OCPNG is not subject to Direction and Control. OCPNG as a constitutional institution enjoys its independence as guaranteed by the Constitution unless it exceeds its jurisdiction (that’s where the courts come in). Itwill not readily submit itself to another agency.
F. SECTION 49 – FALSE OR MISLEADING COMPLAINTS (OLICAC)
Section 45 states:
A person commits an offence if the person makes a complaint to the Commission about alleged or suspected corrupt conduct that the person knows is false or misleading in a material particular.
Penalty: A fine not exceeding K10,000.00 or imprisonment for a term not exceeding three years, or both.
The penalty for a person who knowingly makes a false or misleading complaint against a public official/office is a fine of less than K10,000.00 or imprisonment not exceeding 3 years. This section will definitely discourage genuine complainants from reporting a corrupt conduct as it will instil fear in people to come forward due to the hefty penalty. Anonymous complainants would be affected.
Due to the confidentiality provisions in all or most government organisations, a genuine complainant will not have all materials to come and lodge complaint with ICAC when they feel threatened by such provision. Will complainants come forward to come and lodge complaints?
G. SECTION 50 – ASSESSMENT OF COMPLAINTS ETC (OLICAC)
Section 50 states:
(1) After receiving a complaint about alleged or suspected corrupt conduct, the Commission must assess the complaint.
(2) In assessing the complaint, the Commission may have regard to whether the complaint —
(a) raises a potential matter of corrupt conduct; or
(b) raises a matter of serious corrupt conduct or systemic corrupt conduct; or
(c) raises any matter of public interest; or
(d) appears to lack credibility or substance; or
(e) is trivial, vexatious or frivolous; or
(f) raises a matter that occurred too long ago to justify an investigation; or
(g) raises a matter that is more appropriately dealt with by another agency or body; or
(h) raises a matter that has previously been dealt with by another agency or body and there is no reason to re-examine it, or there is other good reason why no action should be taken in respect of the matter.
(3) The Commission must assess a matter involving alleged or suspected corrupt conduct if —
(a) the matter is reported or referred to the Commission by another agency or body; or
(b) the Commission is aware of the matter acting on its own initiative.
Sections 50, 51 and 52 of OLICAC are a duplication of the OCPNG CAID’s Standard Operation Procedure.
The process of assessing complaints maybe prolonged.
H. SECTION 52 – PUBLIC STATEMENTS (OLICAC)
Section 52 states:
The Commission may, subject to other laws, make or publish a public statement about a complaint or investigation concerning alleged or suspected corrupt conduct if, in the Commission’s opinion, it is appropriate to do so in the public interest, having regard to the following:
(a) the benefits to an investigation that might be derived from making the statement;
(b) the risk of prejudicing the reputation or safety of a person by making the statement;
(c) whether the statement is necessary in order to allay public concern or to prevent or minimise the risk of prejudice to the reputation of a person;
(d) if an allegation against a person has been made public and, in the opinion of the Commission, the person is not implicated in corrupt conduct – whether the statement would redress prejudice caused to the reputation of the person as a result of the allegation having been made public;
(e) the risk of adversely affecting a potential prosecution of a criminal offence or a disciplinary proceeding.
The procedure under Section 52 OLICAC on Public Statements is offending Sections 37 and 59 of the Constitution pertaining to natural justice. All investigation must be conducted in private until Section 59 of the Constitution is administered. Otherwise, this is offending the Constitutional provision.
Investigations made on oath are to be made in private and confidential until the person is given an opportunity to be heard.
Why will an investigation be conducted in public?
Is this an inquiry or a “Criminal Investigation”?
I. SECTION 55 – SELF-INCRIMINATION ETC (OLICAC)
Section 55 states:
(1) A public body or public official is not excused from producing a statement of information on the ground that doing so incriminates the body or official.
(2) A statement of information —
(a) is not admissible in evidence against the body or official in any civil or criminal proceedings; and
(b) is admissible in a hearing of the Commission.
Applicable to Sections 59 and 70 OLICAC
Section 59 states:
(1) A person is not excused from producing a document or thing on the ground that doing so incriminates the person.
(2) A document or thing produced —
(a) is not admissible in evidence against the person in any civil or criminal proceedings and
(b) is admissible in a hearing of the Commission.
Section 70 states:
(1) A person who is summoned to produce a document or thing at a hearing, is not excused from producing the document or thing on the basis that doing so incriminates the person.
(2) A person who is a witness at a hearing is not excused from answering a question at the hearing, whether or not the person is summoned to give evidence, on the basis that doing so incriminates the person or exposes the person to a penalty.
(3) Evidence given, at a hearing (including a document or thing produced) —
(a) is not admissible in evidence against the person in any civil or criminal proceeding; and
(b) is admissible at the hearing.
This provision is presumed to be wrong in a sense that it is asking a person to self incriminate onself – why would anyone want to report oneself for the crime he/she has committed?
This disqualifies every person’s right to the full protection of the law pursuant to section 37 of the Constitution, the presumption of innocence.
Additionally, in relation to the principles of natural justice under Section 59 of the Constitution, an accused is innocent until proven guilty.
Comments are applicable to sections 59 and 70 OLICAC
J. SECTION 63 – HEARING (OLICAC)
(1) The Commission may hold a hearing for the purposes of an investigation.
(2) The hearing must be held before at least one member of the Commission.
(3) The Commission may decide to hold the whole or a part of the hearing either in public or in private.
Section 63(2) states that a hearing must be held before at least one member of the Commission, this section attracts biasness as there is only one person in the quorum who may decide on the hearing.
Here the hearing must be by the Commission unless there is an issue of Conflict of Interest on the part of a member of the Commission or a vacancy exists for instance a member of the Commission is out of office due to external engagements.
K. SECTION 65 – RULES OF EVIDENCE DO NOT APPLY (OLICAC)
Section 65 states:
(1) The Commission is not bound by the rules of evidence at a hearing and may inform itself as the Commission considers appropriate.
(2) The Commission must conduct a hearing with as little formality and technicality as the Commission considers appropriate.
Section 65 is queried as the law of evidence is a collection of rules that apply to the proof of facts in court.
As this relate to criminal investigations and not Disciplinary investigations: The liability is on the part of the State to prove beyond reasonable doubt. How can ICAC ignore the rules of evidence like in the case of investigations by OCPNG.
They must consider “rule of evidence” as and when proving beyond reasonable doubt against the balance of probability.
This section will affect affidavits as sworn statements, the burden of proof, evidences (circumstantial evidences), the compatibility and competence relating to the law of evidence (Evidence Act).
L. SECTION 133 – APPOINTMENTS COMMITTEE (OLICAC)
Section 133 states:
(1) The Appointments Committee consists of —
(a) the Prime Minister; and
(b) the Leader of the Opposition; and
(c) the Chief Justice; and
(d) the Chairman of the Public Services Commission; and
(e) the Chairperson of the Papua New Guinea Council of Churches.
(2) All members of the Appointments Committee are to be paid fees and allowances determined under the Boards (Fees and Allowances) Act 1955.
(3) The Prime Minister is the Chairperson of the Appointments Committee.
Initially as stated under Section 13 OLICAC discussion, the Chief Ombudsman of OCPNG has not been included in the Appointments Committee nor the Advisory Committee even though OCPNG had initially recommended to be part of the Appointments Committee.
OCPNG has records to assist in its “integrity checks” on persons considered for leadership appointments, hence why is OCPNG removed from becoming a member in the Appointment Committee.
This task comes with its position that one holds, and they are paid to execute those tasks. Why will the members be paid sitting allowances when it is part of their job?
M. SECTION 144 – FUNCTIONS AND POWERS OF THE OVERSIGHT COMMITTEE (OLICAC)
Section 144 states:
(1) The functions of the Oversight Committee are set out in Section 220G of the Constitution and the Commission is to cooperate with the Oversight Committee in the performance of the Committee’s functions.
(2) In exercising its functions, the Oversight Committee may —
(a) review and make recommendations on the operations, functions and powers of the Commission; and
(b) review the staffing, financial and other resourcing requirements of the Commission and make recommendations that it considers necessary to address any resourcing needs; and
(c) review the Commission’s annual report.
(3) In performing its functions and exercising its powers, the Oversight Committee cannot examine, review or report on —
(a) the alleged or suspected corrupt conduct of a particular person, or a particular body or agency; or
(b) the action taken by the Commission relating to the alleged or suspected corrupt conduct of a particular person, or a particular body or agency.
Section 146 (CHAIRPERSON MAY CONVENE MEETINGS) states:
The Chairperson of the Oversight Committee may convene such other meetings as he considers necessary.
OCPNG’s initial recommendation was that ICACC be free from direction and control.
Sections 143 and 146 are to be reviewed.
OCPNG is content/enjoys Section 217(5) of the Constitution where it is independent from Direction and Control.
If we are talking about serious fraud and high profile investigations, ICAC must not have an oversight body. It must be free from direction and control, like OCPNG, subject only to the Auditor –General on audit functions.
N. GENERAL COMMENTS
- The entire OLICAC so far as a “corrupt conduct” organisation is a duplication of OCPNG functions.
- Were the Constitutional Law Reform Commission (CLRC), State Solicitors Office and First Legislative Counsel consulted when drafting the OLICAC?
- Where will ICAC accommodate accused or convicted persons as there is no mention of prison facilities in OLICAC (International ICAC’s have their own prisons). PNG is currently lacking prison accommodation space and facilities.
- Sections 55, 59 and 70 of the OLICAC disqualifies every person’s right to the full protection of the law pursuant to Section 37 of the Constitution, the presumption of innocence.
- The public hearings under Part V of the OLICAC portrays that public hearings that will be conducted by ICAC are similar to that of the Commission of Inquiry.
- Almost the entire complaints handling and investigation processes of ICAC duplicates the OCPNG’s Leadership and CAID Division Standard Operating Procedure (SOP).
- The main functions of ICAC under OLICAC do not necessarily complement the work of OCPNG and other constitutional bodies such as the Police and the Office of the Public Prosecutor however majority of ICAC functions fall into duplicating the functions of OCPNG, Police and the Office of the Public Prosecutor.
- Since the effectiveness of ICAC is uncertain in a developing country like PNG with insufficient funding should ICAC be embedded into current constitutional bodies (OCPNG, Police or Office of Public Prosecutor) for instance like FASU BPNG.
- Sections 220F and Section 220G of the Constitution are offending each other. Section 220F should remain and Section 220G shall be removed.
- Section 220H of the Constitution states that Annual Reports by ICAC will be presented to the Speaker of the Parliament however as practiced by OCPNG in accordance with section 220 of the Constitution and all constitutional offices: all Constitutional Offices should submit their Annual Reports to the Governor General, so that it in consistent with office holders. Why is ICAC going to present its Annual Report to Speaker?