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[F.A.Q.] [Help]PNG Constitutional Planning Committee Report 1974 |
Constitutional Planning Committee Report 1974
CHAPTER 11
1. The "Ombudsman Commission" is one of the new institutions which our people, in their submissions to us, have clearly decided is necessary to meet their changing needs as Papua New Guinea moves to independence. We fully support their views, and have accordingly recommended the establishment of this important body, which we describe below. In our traditional societies, there were many customs and beliefs which imposed restrictions on land use, on human relations and on personal obligations. These traditional controls are no longer adequate to cope with the increasingly interdependent nature of our societies and the widespread activities of government.
2. The government of our country today must have a substantial police force to maintain internal stability. Our defence force guards against external attack. The government must also provide roads, education and health services and make it possible for our people to find meaningful employment; the parliament has to make laws to govern the wise use of our resources. When conflicts arise, our courts are equipped to settle disputes amicably.
3. The modern control system has become very complex, and many men and women who are trained to administer those controls, cannot be adequately supervised. The decisions of these men and women in the public service and in semi-government institutions affect a great number of people. Sometimes, even the most diligent public servant makes errors. Because of the size of the public service, careful superintendence of all government officials is difficult. Some public servants take advantage of this, and their negligence, or wilful abuse of administrative power, can result in hardship or injustice being caused to many.
4. In a number of industrialised countries, the office of the Ombudsman has been established to fill the gaps in the scope of the court system, and to strengthen the integrity of the public service. The "Ombudsman" is an independent government official who receives complaints about government agencies mainly from people who feel they have been unfairly or unreasonably dealt with by officials. This work involves the Ombudsman in investigating these complaints (and sometimes initiating investigations himself) and, if he finds evidence of, for example, administrative injustice or unreasonable delay in taking action, he makes recommendations to remedy the situation.
5. The court system is for various reasons restricted in being able to provide a remedy in many situations even when it is clear that an obvious wrong has been done to someone. Courts for instance, are reluctant to inquire into the fairness or otherwise of an administrative decision on the basis that administrative decisions and actions are of the essence of the exercise of executive power, and only if it is clear either that a particular executive act or decision was beyond the scope of a specific executive power or there has been an obvious mistake in law; or the rules of natural justice have been ignored, do the courts see intervention on their part as being justified.
6. Some countries have evolved intricate systems of administrative tribunals to deal with grievances of one sort or another arising from acts or decisions of public servants. These tribunals work under flexible rules of procedure. Whilst not closing the door to similar tribunals being developed in Papua New Guinea in the future, we confine our recommendations in this field for the time being to proposing the establishment of an ombudsman.
7. A few years ago many people doubted that the institution of the Ombudsman would be suitable to the developing nations. It was argued that the members of the public service in countries such as ours were too inexperienced and prone to excessive use of power and that the executive was too strong to allow an ombudsman to function properly. Yet many new States have established an ombudsman in recent years, and some of these have been very successful in helping to make administrators more responsive to the public, and promoting the idea that a member of the public is entitled to redress if he has been unfairly or unreasonably dealt with by a government officer.
8. There is, however, a tendency in some developing countries to see the role of the Ombudsman as a substitute for or an alternative to the courts. We believe that our Ombudsman Commission should have more the supervisory and investigatory role in relation to those vested with the administrative power to make decisions, rather than for the Commission to be seen as a substitute for the courts.
9. This does not mean that we see the Ombudsman as in any way less significant. In fact, we recognise that sometimes access to courts is difficult, for psychological or other reasons, and that the courts are not always able to provide redress sufficiently promptly or in the most effective way. In such situations, the ombudsman could be the more appropriate channel for the redress of grievances.
10.
In recommending the establishment of the Ombudsman Commission we have
given consideration to the kinds of arguments which were raised some years ago,
when the possibility of introducing the institution of the ombudsman was first
raised in
11. Members of the House of Assembly are not themselves in a position to investigate complaints of administrative injustice or malpractice - they are obliged to rely upon senior public servants to do this. These people may themselves be involved in the matter complained of, and if so, are unlikely to make a satisfactory investigation of it. Even if a senior officer is not personally involved a departmental inquiry is unlikely to be as searching as one made by an independent body such as an ombudsman. An ombudsman has the staff, the expertise, the authority and the independence to make a thorough investigation, and is in a position to persuade the department or authority concerned to take corrective action if this is necessary. In our view, the person complaining is therefore far more likely to obtain redress through an ombudsman than through a member of parliament.
12. If an ombudsman were established, the member of parliament could, of course, refer complaints to him, and probably gain more credit in the eyes of his constituents than he does at present, since there would be a better chance of injustices being redressed.
13. The second main argument against the establishment of an ombudsman in Papua New Guinea is that it is unnecessary in view of the fact that we have a Public Solicitor's Office which can handle most of the kinds of complaints with which an ombudsman might otherwise be concerned.
14. We reject this argument also, on the basis that there is a clear distinction between the respective roles of the two institutions - the ombudsman in his general jurisdiction being concerned mainly with matters concerning the bureaucracy which are best dealt with by administrative means or do not involve a cause of action which could be tried in court. Furthermore, the Public Solicitor does not have the necessary power of investigation to carry out the functions of an ombudsman. He is bound by the ordinary rules of evidence and procedure while the procedures of an ombudsman are not so limited, and are more flexible.
15. We did, in fact, consider the possibility of combining the functions of the Public Solicitor with those of the proposed Ombudsman Commission, but ultimately decided against such a recommendation on the grounds that the differences between the respective roles and procedures of these two institutions were such as to make it undesirable to merge them. We foresaw an extremely difficult situation arising when the Ombudsman Commission decided that disciplinary or criminal proceedings should be taken against a particular leader, and referred the matter to the Public Prosecutor. The leader might then wish to obtain legal aid in respect of his defence against any charges laid against him by the Public Prosecutor. If the Ombudsman Commission and the Public Solicitor's Office were part of the same organization, neither the leader nor the community would feel that justice could be done in such cases.
16. There are, of course, considerable advantages in having some degree of administrative co-ordination between these two institutions. We have therefore proposed that in the provinces, the same person should act as agent for both bodies. This matter is dealt with in detail later in this chapter.
An "Ombudsman" for Papua New Guinea - the Ombudsman Commission, its powers and functions
17. Papua New Guinea's ombudsman should be available to assist ordinary people throughout the country who feel aggrieved by actions or omissions of the bureaucracy or of any institution of government. We consider that our ombudsman should also have the important responsibility of supervising and enforcing the Leadership Code, to ensure that our leaders do not compromise national, provincial or local interests for personal and selfish ends. Our ombudsman should have the necessary powers to investigate charges of corruption or other types of abuse of public office, and to ensure that appropriate action is taken against those who break the provisions of the Code.
18. We realise that it may be argued by some in government that the existence of such an institution could be unnecessarily restrictive of the initiative and the independent discretion of the government and its officers. The government may sometimes be embarrassed by disclosures or recommendations made by the ombudsman. These, we believe, are not sufficient reasons for not having an ombudsman. Such arguments have been put forward in other countries shortly before the establishment of an ombudsman, yet in virtually all cases the work carried out by the ombudsman has proved, on balance, to be clearly beneficial to the effective functioning of governmental institutions and to citizens generally.
19. Another function we consider the Commission is well suited to carrying out is that of enforcing legislation prohibiting discriminatory practices. To date no legal action has been brought in any court for an offence against the Discriminatory Practices Ordinance, yet it is common knowledge that discrimination against Papua New Guineans on racial grounds is still common.
20. We have given careful consideration to the question of whether a single person or a number of people should hold this office. We believe, as do our people, that because of the diverse nature of our society and the collective way in which it is our custom to settle disputes, three persons should be members of what we call the Ombudsman Commission. One of these should be the Chairman. He is to be called the Chief Ombudsman.
21. It seems that our people support the concept of ministerial responsibility, and our recommendations in Chapter 7, "The Executive", reflect this. We therefore recommend that the Ombudsman Commission should not question the merits of a Minister's policy decision unless maladministration was involved either in the advice given to the Minister before the decision was made or in the implementation of the decision. We have also made it clear that the Commission is not permitted to question the decision of a court on its merits.
22. We have recommended in favour of an independent Commission. That independence should be deeply embodied in a sense of fairness and determination to do what is just in a given situation. The Ombudsmen should travel regularly to various parts of the country, make investigations into complaints made to them, and carry out investigations on their own initiative if they have a reasonable belief that a wrong may have been done to an individual or group, or that a law is being applied unfairly.
23. While it is clearly of great importance that the Commission have the confidence of the people, it is also important that it should enjoy the confidence of the Government. Bearing this in mind, we recommend that the members of the Commission should be appointed by a special committee chaired by the Prime Minister, its other members being -
§ the Chief Justice;
§ the Chairman of the First Parliamentary Committee;
§ the Deputy Chairman of the First Parliamentary Committee;
§ a Provincial Premier or Chairman chosen by all the Provincial Premiers and
§ Chairman annually; and
§ the Chairman of the Public Service Commission.
This composition would mean that the most senior members of all three arms of government at the national level, as well as a Premier on behalf of the provincial governments and the Chairman of the Public Services Commission would be involved in the selection of the Ombudsmen. This, we consider, should mean that those appointed as Ombudsmen would have broad political, judicial and public service support - an essential prerequisite if this new institution is to be effective. Once appointed, the Chief Ombudsman and the other Ombudsmen would be quite independent of any political or other authority or group.
24. The qualifications which we believe the Chief Ombudsman should have are primarily personal, not formal. We consider that it is essential that the person who is chosen as Chief Ombudsman should have complete integrity, independence of mind, and high standing (but not necessarily status) in the community. He should also be a person of resolution, who can cope with frustration and overcome administrative inertia. We have accordingly made our recommendations in these terms.
25. Other characteristics which would also be invaluable in a Chief Ombudsman would be tact, initiative, thoroughness, an ability to persuade, and some background in public administration.
26. A number of ombudsmen in other countries have a legal background but we do not see this as an essential qualification in respect of the Chief Ombudsman of Papua New Guinea , as we have recommended that there be a full time legal adviser (counsel) to the Commission. In any event, the qualifications for one of the other Ombudsmen include legal qualifications and experience as an option.
27. We do, however, believe it is of great importance that he be a citizen of this country, who has a good appreciation of Melanesian thinking and actions, and who can speak and negotiate with politicians and senior public servants with the authority that only a Papua New Guinean holding this office would have.
28. Although, as we have explained, we consider that the Chief Ombudsman should be chosen on the basis of his personal qualities rather than because he has particular professional qualifications, we believe it is important, if the Ombudsman Commission is to be fully effective, for one of the other Ombudsmen to have qualifications and experience in accountancy, and for the other to have an administrative or legal background. We have recommended accordingly. This recommendation ensures that the Commission includes people who have knowledge and experience in at least two of the several fields of activity with which the Commission will be concerned.
29. The Ombudsman with the accountancy background will be particularly concerned with the Leadership Code enforcement side of the Commission's activities, though obviously there will be many matters arising out of the Commission's other responsibilities with which the "Accountant Ombudsman" will be concerned.
30. The personal qualities of these two Ombudsmen will also be important. Like the Chief Ombudsman, unless they enjoy the respect and trust of the politicians, public servants and other people with whom they are in contact in the course of their work, their task is likely to prove difficult.
31. In view of the present shortage of Papua New Guineans with the required background, we do not exclude the possibility that in the immediate future one of these two Ombudsmen might be a foreign citizen.
32. We recommend that one of the Ombudsmen, other than the Chief Ombudsman, should be designated the Senior Ombudsman, and that whenever the Chief Ombudsman is absent or not able to perform his duties, the Senior Ombudsman would act in his place.
33. In order to be able to attract people with the ability which we consider is vital to the success of the Commission, and also to provide the appropriate recompense for the responsibilities which he will be shouldering, we recommend that the Chief Ombudsman be paid a salary and allowances which are at least equivalent to those of a judge and allowances payable to the Public Prosecutor and the Public Solicitor. This recommendation is in line with the practice in most other countries where the institution of the ombudsman has been established.
Staff and facilities
34. As we have already mentioned, we are, of course, well aware of the great shortage of trained personnel in our country at present, and of the resulting pressure on human resources in all fields of government activity. However, we are concerned that the Commission should not be placed in a position where it has insufficient staff to carry out its work, and have recommended that there be a constitutional provision to safeguard the Commission's requirements in this respect. We have also recommended that the Commission be provided with adequate facilities.
35. We recommend, that the Chief Ombudsman, in consultation with the other Ombudsmen, have responsibility for administering the Commission, and that positions of Counsel to the Commission and Secretary of the Commission be established at a senior level. (We recommend level 1 in the public service salary classification.) The occupants of these positions will carry considerable responsibility and are likely to have a heavy workload in view of the broad responsibilities which we have recommended should be entrusted to the Commission.
36. We further propose that the officers of the Commission should, like officers in the Parliamentary Service, be independent of the Public Services Commission and that the Ombudsman Commission, subject to consultation with the Minister responsible for management matters, in the public services, should have power to establish all positions in the Commission. Officers of the Commission would be appointed, transferred, protected, etc by the Commission itself. This provision is quite common elsewhere. It is intended to give the Commission a reasonably free hand in staffing its office. We consider that the highly personal nature of the work of the Commission, coupled with the fact that it is a new institution, justify giving this leeway to such a highly placed and responsible institution.
37. We recommend that the Commission should have a general jurisdiction similar to that possessed by Ombudsmen in other countries, but that in addition it should have two specific areas of responsibility - one concerned with the supervision and enforcement of the Leadership Code which, in Chapter 3, we have recommended be incorporated as a schedule to the Constitution, and the other the enforcement of legislation prohibiting discriminatory practices.
General jurisdiction
38. The Commission's general jurisdiction should, we believe, be very broad, covering the full range of administrative activities of government departments and authorities. Experience in other countries has shown that attempts to define an ombudsman's jurisdiction in a detailed way have been unproductive as they have led to numerous disputes over its exact limits. We believe it is far better to define the scope of the Commission's general functions broadly, give the Commission scope for rejecting complaints or declining to investigate a particular matter on the basis of certain specific provisions in the Constitution or in ordinary legislation, and also to state in the Constitution certain matters in respect of which the Commission is to have no power to investigate. Our recommendations have been made accordingly.
39. The proposed general jurisdiction of the Commission enables it to inquire into the conduct of persons such as those in a government department, a disciplined force, (the Defence Force, the Police Force, etc.) statutory authority, local government council, the staff of a Minister, constitutional office-holders, members of government committees, and in the Parliamentary Service.
40. We recommend that the Commission be able to investigate, either after receiving a complaint, or on its own initiative, acts or omissions by officials which appear to it to be instances of maladministration or unfairness. The Commission also should be able to look into any apparent defects or unfairness in laws made by parliament or in the way in which such laws are being applied by those responsible for administering them. Our purpose here is to ensure that the Commission is able to recommend that action be taken to remedy a situation where injustice is being caused, even though this is not due to an administrative action or omission, but to an unsatisfactory provision in an Act of Parliament or a regulation or rule made under it.
41. Turning to the two special areas of jurisdiction which we propose that the Commission should have, we recommend that it have power to inquire into -
§ possible breaches of the Leadership Code by any leader; and
§ possible breaches of any law prohibiting discriminatory practices.
42. In Chapter 3, "The Leadership Code", we have indicated our view as to the importance of the role of the Commission in seeing to it that the Leadership Code is observed by leaders. We do not underestimate the difficulty or the heavy responsibility which this task will entail; indeed it is partly for this reason that we have recommended that the Commission be a three person body rather than a body consisting of a single person only, as in most countries which have an ombudsman. We feel that a group of three persons will be in a better position to cope with the pressure of work and the discussions with Ministers and senior government officers in regard to matters which at times are likely to be of a very delicate nature.
43. In respect of its jurisdiction in relation to breaches of discriminatory practices legislation, it is our belief that the ineffectiveness of the Discriminatory Practices Ordinance is due in large part to the fact that there is no supervising body such as the Race Relations Board in the United Kingdom with responsibility for investigating complaints of racial discrimination and taking steps to have discriminatory actions dealt with administratively. Experience in other countries clearly shows the need for a watchdog body of this kind to oversee the enforcement of such legislation.
44. The specific limitations on the jurisdiction of the Commission which we recommend are designed to ensure that the Commission does not inquire into the correctness of actual decisions made by courts in exercising their judicial functions, or into policies made by Ministers (either collectively through the National Executive Council, or individually) which have influenced particular decisions. Our recommendations do, however, enable the Commission to inquire into improper influence which may have been brought to bear in relation to a judicial decision, or to the formulation of a ministerial policy.
45. We believe it important that the Commission should have maximum flexibility in deciding the ways in which complaints are received and acted upon, the extent to which the Commission will investigate particular matters, and how often and to whom it distributes its recommendations. Informality should be a keynote of the Commission's procedure if it is to gain support of our people. We envisage that many complaints to the Commission will be made verbally and that there will be no charge for lodging a complaint with the Commission.
46. To ensure that no adverse recommendation or report about a person whose conduct is investigated by the Commission is made unless that person is given the opportunity to put forward his version of the relevant circumstances, we have recommended that the Commission be required to give that person a hearing before making a report or recommendation of that nature. This provision would apply in respect of all aspects of the Commission's jurisdiction. It does not mean, however, that a person has a right to a hearing before the Commission simply because it has begun to make inquiries into his work or other activities. Such a requirement would unduly hamper the Committee's work and would not be justified in our view, since many inquiries will not lead to any criticism of particular persons.
47. We have specifically recommended that government departments and all other authorities whose activities are subject to investigation by the Commission should give it their co-operation and assistance in respect of information the Commission considers is necessary for it to carry out its responsibilities. This co-operation will clearly be essential if the Commission is to be able to function efficiently.
48. Other powers which we recommend the Commission should have are -
§ powers in relation to the supervision and enforcement of the Leadership Code, apart from those set out in Chapter 3;
§ subject to one limitation, the power to issue subpoenas (summonses to witnesses) to compel people to appear before the Commission to give evidence or produce documents;
§ subject to one limitation, the power to enter, inspect and call for any document in any house or building occupied or controlled by any department, authority or person in respect of which (or whom) the Commission has jurisdiction. (We have provided for specified buildings to be "off limits" for members or officers of the Commission, if there is an agreement to this effect between the Prime Minister and the Chief Ombudsman, on the basis that serious prejudice would be likely to be caused to national security or Papua New Guinea's relations with other countries if a member or officer of the Commission were to enter the particular building).
49. These broad powers of compulsory process are invariably given to Ombudsmen elsewhere in order that they may obtain needed information. In fact, experience has shown that the power to issue subpoenas is rarely used, as information is normally given freely. This may not, however, always be the case when the proposed Commission is investigating, for instance, a possible breach of the Leadership Code. Though it is likely that the Commission will be mainly concerned with investigating individual complaints, we have recommended that it be empowered to look into general problems which become apparent in the course of its work.
50. We recommend that witnesses who appear before the Commission should have the same rights, duties and immunities as do witnesses who appear before the National Court.
51. In order that the Commission may have the kind of discretion which is normally given to Ombudsmen to decline to investigate complaints which they do not believe justify the time and expense which would be involved, we have recommended that the Commission may make such a decision in any one of a number of specific circumstances. These include, for instance, that -
§ the grievance is outside the Commission's jurisdiction;
§ the complaint is trivial or not made in good faith;
§ the person complaining has another remedy which he could reasonably seek;
§ the complaint has been delayed for too long to justify investigating it;
§ other complaints are more worthy of attention.
52. We would emphasise that the Commission has a discretion to decline to investigate complaints which fall under one of the heads listed in our recommendations, but that it is not obliged to do so in such cases. Thus, even though a complainant might be able to obtain a remedy through court action, the Commission could decide to deal with the matter on the basis that it would be likely to obtain a more satisfactory solution to the problem by administrative means. Even if the Commission declines to investigate a particular complaint, we propose that it should have power to inquire generally into the matter complained of, and related problems.
53. After completing its consideration of a matter, the Commission should, we believe, suitably inform the complainant, and also any government department, authority, or other person or body concerned. This does not mean that we envisage the Commission always giving reasons for declining to investigate a complaint - the Commission should be able to decide a suitable response in certain cases, e.g. where the complainant has psychological problems rather than problems involving governmental authorities. However, normally we would expect the Commission to give full reasons for any action it takes (or decides not to take).
54. After considering a complaint or any matter which it has been investigating on its own initiative, we believe the Commission should, if it thinks a government department or authority, or any person ought to -
§ consider a matter further;
§ take a specific action;
§ modify or cancel any administrative act;
§ alter a regulation and
§ explain more fully the administrative act concerned,
advise the Minister responsible for the department or authority concerned of its recommendations. The Commission should have power to request a responsible Minister or head of authority to inform it of action taken after receiving a recommendation of the Commission, within a time limit specified by the Commission.
55. We further propose that if the Commission finds that unfair or otherwise objectionable provisions are contained in legislation, the Commission should bring this to the notice of the National Parliament or the provincial assembly or recognised local body exercising governmental functions, whichever of these is the appropriate body.
56. Our proposal in this regard amplifies a basic distinction between the role of an ombudsman and that of a court, namely, the action which each body takes after reaching a conclusion about a matter before it. Whereas a court makes an order which binds the parties to the case, the ombudsman makes recommendations for action to be taken, but cannot himself compel a person or authority to follow his recommendation.
57. This is one of the reasons why we consider it to be so important that members of the Ombudsman Commission should have support from politicians at the national and provincial level, from the Public Services Commission, and from the judiciary. If the Chief Ombudsman and the other Ombudsmen have this vital support, the recommendations of the Commission are likely to be acted upon in the great majority of cases. Experience overseas seems to show the considerable weight which recommendations of Ombudsmen who have the respect and trust of those in government and of the general public, can carry.
58. We recommend that if, after having considered a complaint and obtained such evidence and information as it thinks necessary, the Commission forms the opinion that a government department, an authority, or any person should consider a matter further; take some specific action; modify or cancel any administrative act; alter a regulation or ruling; explain an administrative action more fully to a person affected by it; or take any other step, the Commission should advise the Minister responsible for the department or authority concerned of its recommendations.
59. Normally the Commission would not make a recommendation unless it has found an error or improper action by the department or authority concerned, but we envisage that it would be free to suggest improvements in method, procedure or policy even when the existing practice may be legally correct. In this way the Commission may help one department or authority to learn about and take advantage of the procedures of another.
60. The Commission is likely to recommend quite often that action be taken by the department or authority concerned to correct an error or unfair decision. If the department or authority has power to do so we would expect that in most cases the necessary corrective action would be carried out.
61. However, to try to ensure that the Commission's recommendations are considered and acted upon promptly, we propose that it be empowered to request the responsible Minister or head of an authority to advise it within a certain time of the action it has taken in relation to the Commission's recommendations. In cases where no action is taken within the specified time, and no good reasons for this inactivity are given, the Commission might well make an unfavourable report on the matter in the manner indicated below under the heading - "Publication of recommendations".
62. As mentioned above, we have made specific provision for cases where injustice is being caused because (or partly because) the relevant legislation is unsatisfactory. In these cases, we propose that the Commission should make known its views in a report to the National Parliament or the appropriate provincial assembly, area authority or legally recognised local body exercising powers and functions of government.
63. By making this recommendation we do not suggest that the Commission need be a general social reformer, but we believe it does have an obligation to draw attention to Acts and regulations that have unreasonably harsh effects.
64. Bringing its views into the open is the Commission's only way of gaining the support of the public in respect of a particular matter it has investigated. We believe that the Commission should be able to publish a recommendation even when a department, authority or person has accepted it. For example, publicity may be necessary to call the attention of other administrators or of Ministers to the need for better procedures in a particular field. Also publicity helps to remind people generally that the Ombudsman Commission is functioning in their interests.
65. However, we believe publicity should come at the end, not at the beginning of discussions which the Commission has with the department, authority or person concerned. Persuasion should be the main method of gaining a favourable response from those whose activities the Commission is investigating. However, where it finds a clear breach of the Leadership Code, or of discriminatory practices legislation, it should normally refer the matter to the Public Prosecutor with a recommendation for appropriate proceedings to be taken by him.
66. In most cases, it would be only when persuasion fails that the Commission would publish its findings and rely upon public opinion having an influence in relation to a particular issue.
67. We propose that the publication of recommendations be made by the Commission to one or other of -
§ the Prime Minister;
§ the National Executive Council;
§ the Speaker of the National Parliament for tabling in parliament;
§ the Minister responsible for the Public Services;
§ the Judicial and Legal Service Commission;
§ the Chief Justice or the Chief Magistrate;
§ the Chairman of the Public Services Commission;
§ a Provincial Premier or Chairman;
§ any other person or body that the Commission considers may be concerned and should receive a copy of the recommendations.
To guard against one-sidedness in its published recommendations, we propose that the Commission be required, when publishing an opinion which is 'unfavourable' to an authority or official, to include the substance of any explanation of an error or malpractice or the rejection of any recommendation of the Commission which the authority or official has made.
68. We envisage that before announcing a conclusion or recommendation which criticises a department, authority or any person, the Commission will advise that body or person of its intention and provide it (or him) with a copy of the text of the conclusion or recommendation. This should ensure that the Commission's conclusions are not affected by any factual errors, as these could be pointed out at that stage.
69. As in the case of other constitutional office-holders (see Chapter 14 "General"), we recommend that the Commission submit to the Speaker for presentation to the National Parliament at least annual reports on its activities. These need not include the names of those who are immediately concerned if to do so would cause unjustified hardship. If named authorities or persons are mentioned and criticised in a report, we recommend that the substance of their replies to the criticism must be included in the report.
70. One of the Commission's key functions should, as we have said earlier, be its supervisory and enforcement role in relation to the Leadership Code. (We have dealt with this in some detail in Chapter 3.) In this chapter we are concerned with the general powers of the Commission in relation to improper actions by officials and leaders. We propose that if the Commission, after investigating a matter involving suspected improper action by an official other than a leader, or by a leader, believes that the commencement of criminal proceedings or disciplinary action is justified it should refer the matter to the appropriate authority. In the case of a public servant, this would normally be the Departmental Head if the matter were an offence against the Public Service Ordinance or Regulations, but if a criminal action were involved we envisage that the Commission would refer it to the police or the Public Prosecutor.
71. In the case of an apparent breach of the Leadership Code, the matter would be referred by the Commission to the Public Prosecutor who would then, on the basis of the case put to him by the Commission and any further evidence which he might be able to obtain, make an independent decision as to whether or not to take disciplinary or criminal action against the leader.
72. To provide against the possibility that the Commission, which would have its own legal adviser and possibly a lawyer as one of the Ombudsmen, might occasionally disagree strongly with a decision by the Public Prosecutor not to take proceedings against a leader for a breach of the Leadership Code after a reference had been made to him by the Commission, we have recommended that the Commission be itself empowered to take such proceedings if it considers it is in the public interest to do so. This provision would almost certainly be rarely used in practice, but may well help to strengthen the position of the Public Prosecutor if pressure is brought to bear to try to persuade him to decline to take action against an influential leader against whom there is a strong case indicating that he has committed a breach of the Leadership Code.
73. As we have explained in Chapter 3, we consider that in cases of minor breaches of the Leadership Code, the Commission may well be able to persuade a leader who is in error to rectify the situation and to undertake not to breach the Code again, in which case it would not be necessary for the matter to be referred to the Public Prosecutor at all. Such references would be made only when the Commission felt that proceedings should be taken against the leader. The Public Prosecutor would, of course, still exercise his independent judgement as to whether or not proceedings should be taken in a particular case.
74. As indicated earlier, we propose that the third main function of the Commission should be the investigation of alleged discriminatory practices which have been prohibited by legislation. We propose that the Commission be empowered to refer to the Public Prosecutor cases in which it considers proceedings should be taken against those whom it believes have committed offences of this kind. Again we envisage that the Commission would be able to achieve significant results by persuasion rather than by court proceedings, but the power to refer cases to the Public Prosecutor for appropriate action is obviously essential.
75. We propose that the protection from legal proceedings which is normally given to Ombudsmen elsewhere be given to the Ombudsman Commission. This protection would ensure that legal action could not be taken against the Commission in respect of its actions or opinions, or of any steps taken by those acting on its behalf, unless it could be shown that the Commission or any of those persons had acted in bad faith. Our recommendation extends to the Commission the immunity from harassment by legal action which is enjoyed by, for example judges and magistrates. It does not, however, prevent criminal proceedings being brought against an ombudsman or an officer of the Commission if it is alleged an offence has been committed by him.
Commission may make rules and publish guidelines, etc.
76. We have recommended that the Commission should have power to make rules regulating its procedure, and to make rules and publish guidelines in regard to the conduct, financial and business affairs of leaders, their spouses and children. This latter power has been explained in detail in Chapter 3, "The Leadership Code".
77. We propose that these rules and guidelines should be made and published only after consultation with the Prime Minister and the Chairman and Deputy Chairman of the First Parliamentary Committee. As in the case of other statutory rules and regulations, these rules and guidelines should be subject to disallowance by the National Parliament.
78. We recommend that the provisions of any law (including the Constitution itself) concerning the Commission should not limit or affect the provisions of any other law under which a person has a remedy or right of appeal, or which provides for an investigation of a matter. It is further proposed that the Commission should have power to inquire into a matter even though a law specifically states that a particular administrative action is final. The finality to which existing legislation refers relates to possible administrative or judicial appeals, and does not contemplate the existence of an ombudsman.
79. Questions will no doubt be raised in parliament about the work of the Commission, and submissions concerning it will also need to be put before the National Executive Council from time to time. We propose that the Prime Minister as head of the Government should be Spokesman for the Commission, and have responsibility for answering questions about the work of the Commission in the National Parliament and in the National Executive Council, for making submissions concerning the Commission to the National Executive Council, and introducing relevant legislation into parliament.
80. We are concerned to ensure that the Commission should be in close contact with our people in all parts of Papua New Guinea , whom it should serve. We propose that through close co-operation between these two institutions the establishment of branch offices of the Public Solicitor and of the Commission in a number of the provinces be co-ordinated.
81. We recommend that the same person act as the agent for both institutions. We envisage that an "agent" in a particular province would be an officer of one of these bodies, but would act as agent for the other. He would receive all the complaints, refer them to the body most appropriate to deal with them, and take such other action as he is authorised by either body to do. In Port Moresby and other major urban centres, the offices of the Public Solicitor and Ombudsman Commission could be located in the same or adjacent buildings, so as to minimise inconvenience to citizens who are not sure as to which institution they should go.
82. We are convinced that the careful balancing of the rights of the individual against the rights of the society at large must be maintained if the rewards of our development are to be enjoyed by all our people. The Ombudsman Commission should make a major contribution to maintaining this balance. The uneducated and the politically weak who tend to lose out in the complicated government system of today should see the Commission as their helper. Those in government and in other official or leadership positions should see it as a body which fulfils an important role of promoting efficiency and integrity in public life.
1. There shall be an Ombudsman Commission which shall have the powers and functions specified in the Constitution or by law.
Note: For the purposes of this Chapter the Ombudsman Commission is referred to as "the Commission".
2. The Commission shall comprise -
(a) the Chief Ombudsman, who shall be Chairman; and
(b) two Ombudsmen, one of whom shall be designated by the Committee referred to below as the Senior Ombudsman;
whose respective offices shall be public offices.
3. In the exercise of the powers and functions conferred upon it by the Constitution and by law, the Commission shall not be subject to the direction or control of any other person or authority.
4. The Chief Ombudsman and the Ombudsmen shall be appointed by the Ombudsman Commission Appointments Committee (referred to below as "the Committee") which shall comprise the following office-holders, ex officio -
(a) the Prime Minister, or another Minister nominated by him, who shall be Chairman;
(b) the Chief Justice, or another representative of the judiciary (including the magistracy) nominated by him;
(c) the Chairman of the First Parliamentary Committee, or another member of that Committee nominated by him;
(d) the Deputy Chairman of the First Parliamentary Committee or another member of that Committee nominated by him;
(e) a Provincial Premier or Chairman chosen on an annual basis by all of the Provincial Premiers and Chairmen, or another Premier or Chairman nominated by him; and
(f) the Chairman of the Public Services Commission or a member of that Commission nominated by him.
5. The Chief Ombudsman shall be a person of integrity, independence of mind, resolution and high standing in the community.
6. (1) Subject to clause (2) below, to qualify for appointment as an Ombudsman, a person shall have either -
(a) appropriate accountancy qualifications and experience; or
(b) appropriate administrative or legal qualifications and experience;
as prescribed by law.
(2) One of the Ombudsmen shall have the qualifications provided for in paragraph (b) above.
Note: Disqualifications, tenure, removal, etc.
The provisions in Chapter 14, "General" concerning disqualifications from appointment and continuance in office of constitutional office-holders, their tenure and other conditions of service, suspension and removal apply to the Chief Ombudsman and the other Ombudsmen.
7. (1) If the office of Chief Ombudsman becomes vacant for any reason, the Senior Ombudsman shall serve as Acting Chief Ombudsman until a successor as Chief Ombudsman is appointed.
(2) If the Chief Ombudsman is for any reason absent or otherwise unable to perform his duties, the Senior Ombudsman shall act in his stead until he resumes his duties.
8. (1) The Chief Ombudsman shall be entitled to a salary, allowances and other conditions of service at least equivalent to those of a judge of the National Court.
(2) The Ombudsmen shall receive salaries, allowances and other conditions of service which are at least equivalent to those of the Public Prosecutor and the Public Solicitor.
9. Neither the office of Chief Ombudsman nor either of the two offices of Ombudsman shall be abolished while it has a substantive holder.
10. The Commission shall be provided with adequate numbers of suitably qualified staff and with adequate facilities for the efficient discharge of his duties.
11. (1) The Chief Ombudsman shall, in consultation with the Ombudsmen, have responsibility for the administration of the Commission.
(2) The Commission shall have control over establishment matters and conditions of service in relation to all positions in the Commission, subject to consultation with the Prime Minister or Minister assisting the Prime Minister in respect of management matters in the public services.
(3) The Commission shall establish positions of -
(a) Counsel to the Commission;
(b) Secretary of the Commission;
(c) such other positions as the Commission considers necessary for the effective discharge of its responsibilities.
(4) The Commission shall appoint persons to the positions established under clause (1) above and shall have the same powers of promotion, transfer and discipline as does the Public Services Commission.
(5) Officers of the Commission shall have rights which are portable in relation to the other public services.
Note: The Committee recommends that the positions of Counsel to the Commission and Secretary shall be classified at Level 1 in the Public Service salary classification.
12. The Ombudsman Commission shall have jurisdiction to inquire into, whether upon complaint, or on its own initiative -
(a) the conduct of any person or body to whom Recommendation 13 of this chapter applies, in the exercise of his office or authority or in abuse of it, including -
(i) acts or omissions which appear to the Commission to constitute instances of maladministration or unfairness; and
(ii) any alleged or apparent defects or unfairness in legislation or the application of legislation;
(b) any alleged or suspected breach of the Leadership Code by any "leader" (as defined in Chapter 3, "The Leadership Code"); and
(c) any alleged or suspected breach by any person of a law prohibiting acts or omissions which constitute discriminatory practices.
Note: "maladministration or unfairness" includes arbitrary decisions or arrests, omissions, inefficiency, improper use of discretionary powers, decisions made with bad or malicious motive, decisions which have been influenced by irrelevant considerations, unnecessary or unexplained delays, illegal or obviously wrong decisions, mistaken actions and omissions, unreasonable, unjust, oppressive or improperly discriminatory actions, failure to give adequate reasons for an action or an omission, misapplications or misinterpretations of legislation, and acts or omissions which are otherwise objectionable.
13. Subject to Recommendation 14 below, the jurisdiction of the Commission under Recommendation 12 (a) above extends to -
(a) all departments of government, public officers and government employees;
(b) the disciplined forces, and all members and employees of those forces;
(c) all persons directly employed by provincial governments, area authorities or local government councils and other recognised local bodies exercising governmental functions;
(d) all local government councils and other recognised local bodies exercising governmental functions;
(e) all statutory corporations, boards and other bodies including tertiary institutions, established wholly or mainly out of public funds, or the majority of whose members are appointed by the National Executive Council or by a Minister, and the members and persons in the employment of those bodies;
(f) all commissions and committees established by or under the Constitution or any law (including the Teaching Service Commission and the Local Government Service Commission), and the members and persons in the employment of those bodies;
(g) all constitutional office-holders and persons subject to their direction or control;
(h) all members of the Parliamentary Service;
(i) ministerial staffs; and
(j) such other authorities and persons as are prescribed by parliament.
14. (1) The Commission shall have no power to question or review any decision of any court, or of any judicial officer in the exercise of his judicial functions, or any matter which is pending before a court or judicial officer.
(2) In investigating any matter leading to, resulting from or connected with the decision of a Minister, the Commission shall not inquire into or question the policy of the Minister in accordance with which that decision was made.
Procedures and Powers
15. (1) Subject to the Constitution and any law, the Commission may determine -
(a) the methods by which complaints are received and acted upon;
(b) the scope and manner of investigations to be made; and
(c) the form, frequency and distribution of its conclusions and recommendations.
(2) It shall not be necessary for the Commission to hold any hearing, and no person shall be entitled as of right to be heard by the Commission, provided that if at any time during the course of an inquiry it appears to the Commission that there are sufficient grounds for it to make any report or recommendation that may adversely affect any leader or other person, it shall inform that leader or other person and give him an opportunity of being heard. No comment that is adverse to any leader or such other person may be contained in a report made by the Committee in accordance with Recommendation 21 or 22 below unless that leader or other person has been given the opportunity of being heard.
Note: The Committee envisages that the Commission would conduct its inquiries in private as is done by Ombudsmen elsewhere.
(3) The Commission -
(a) may request, and shall be given by each government department or other authority referred to in Recommendation 13 above, the assistance and information it considers necessary for the discharge of its responsibilities; it shall be entitled to examine the records and documents of all government departments and other authorities, provided that the Prime Minister and the Chief Ombudsman, may agree to the withholding by the Prime Minister from the Commission of information or any document which, in the opinion of the Prime Minister, is likely if made available to the Commission, to be seriously prejudicial to national security or Papua New Guinea's relations with other countries;
(b) shall have the powers in relation to the content, supervision, enforcement and application of the Leadership Code which are vested in it by recommendations in that chapter;
(c) may issue a subpoena to compel any person to appear before it to give sworn evidence or to produce documentary or other evidence which the Commission considers relevant to a matter under investigation;
(d) shall have power to enforce compliance with any subpoena issued and duly served upon a witness;
(e) shall have power to enter and inspect any premises controlled by a department or any authority or person referred to in Recommendations 12 and 13 above, to call for, examine and, where necessary, retain any document kept on those premises and there carry out any investigation in accordance with his functions, provided that the Prime Minister and the Chief Ombudsman may agree that no member or officer of the Commission shall enter specified premises, on the ground that to do so is likely to be seriously prejudicial to the national security of Papua New Guinea or to Papua New Guinea's relations with other countries;
(f) may undertake to participate in, or co-operate with any general study or inquiry whether or not it is related to any particular department or authority or any particular administrative act, if the Commission believes that it may enhance knowledge about or lead to improvement in the functioning of departments or other authorities.
16. The quorum necessary for a meeting of the Commission for the purpose of conducting an inquiry shall be two of the members of the Commission.
17. (1) Witnesses shall have the same privileges, immunities and obligations as do witnesses giving evidence in the National Court.
(2) The National Court shall have power to punish witnesses whom it finds guilty of contempt of the Commission.
18. (1) The Commission may receive a complaint from any source concerning a matter within its jurisdiction.
(2) A letter to the Commission from a person in a place of detention or in a hospital, or other institution under the control of an administrative agency shall be immediately forwarded, unopened, to the Commission.
(3) The Commission shall conduct a suitable investigation into any matter complained of unless it believes that -
(a) the grievance relates to a matter outside the Commission's jurisdiction;
(b) the complaint is trivial, frivolous, vexatious, or not made in good faith;
(c) the complainant has available to him another remedy or channel of complaint which he could reasonably be expected to use;
(d) the complainant's interest is insufficiently related to the subject matter;
(e) the complaint has been too long delayed to justify present examination of its merit;
(f) other complaints are more worthy of attention;
(g) the Commission's resources are insufficient for adequate investigation.
19. (1) The Commission's declining to investigate a complaint shall not prevent it from proceeding on its own initiative to inquire into the matter complained of, or into related problems.
(2) After completing its consideration of a complaint (whether or not it has been investigated) the Commission shall suitably inform the complaint and, when appropriate, the government department or authority, or the body or person concerned.
20. (1) If having considered a complaint and obtained such evidence and information as it considers necessary, the Commission is of the opinion that a government department, authority or any person should -
(a) consider a matter further;
(b) take specific action;
(c) modify or cancel any administrative act;
(d) alter a regulation or ruling;
(e) explain more fully the administrative act in question; or
(f) take any other step;
the Commission shall advise the Minister responsible for the relevant department or authority or if there is not a responsible Minister, then the head of the authority concerned, of its recommendations.
(2) If the Commission so requests, the responsible Minister or the head of the authority shall, within any time limit the Commission specifies, inform it of the action taken following receipt of its recommendations, or of the reasons for not complying with those recommendations.
(3) If the Commission believes that an administrative action has been wholly or partly due to legislation, the results of which are unfair or otherwise objectionable, it shall bring to the notice of the National Parliament or the appropriate provincial or district assembly, area authority or recognised local body exercising governmental functions, its views as to desirable legislative amendment.
21. (1) The Commission may publish its conclusions, recommendations and suggestions by forwarding them to such of the following persons as it considers appropriate -
(a) the Prime Minister;
(b) the Minister responsible for the Public Services;
(c) the Chairman of any parliamentary committee;
(d) the Speaker of the National Parliament, for tabling in parliament;
(e) the Minister responsible for Justice;
(f) the Chief Justice or Chief Magistrate;
(g) The Chairman of the Public Services Commission;
(h) a Provincial Premier or Chairman; and
(i) such other person holding an official position as the Commission considers appropriate.
(2) When publishing an opinion adverse to an authority or person the Commission shall, except with the waiver of this right by the authority or person affected, include the substance of any statement the authority or official may have made in explanation of past difficulties or present rejection of the Commission's recommendations.
Note: The Committee envisages that before announcing a conclusion or recommendation that criticises a government department, authority or any person, the Commission will advise that person or body of his conclusion or recommendation.
22. (1) Provision is made in Chapter 14, "General" for at least annual reports to be presented to parliament by constitutional bodies such as the Ombudsman Commission. A copy of each of these reports shall be forwarded by the Commission to the Prime Minister and to the Chairman of the First Parliamentary Committee at the same time as the report is forwarded to the Speaker of the National Parliament for tabling in parliament.
(2) (a) In discussing in the reports referred to in clause (1) above matters with which it has dealt, the Commission need not identify those immediately concerned if to do so would cause unjustified hardship.
(b) Insofar as any such report may criticise named authorities or persons, it must also include the substance of their replies to the criticism.
23. (1) Subject to clause (2) below, if the Commission has reason to believe that any public officer or other person has acted in a manner warranting criminal or disciplinary proceedings, it shall refer the matter to the appropriate authority.
(2) If the Commission has reason to believe that a leader has committed a breach of the Leadership Code it may refer the matter to the Public Prosecutor recommending that appropriate proceedings be taken against the leader concerned.
(3) If the Public Prosecutor, following a reference to him by the Commission under clause (2) above, for any reason decides not to commence proceedings against a leader either for a breach of the Leadership Code or for any criminal offence with which that leader might be charged in respect of the conduct which the Commission has reason to believe constitutes a breach of the Code, the Commission shall have power (if in its discretion it considers that it is in the public interest to do so), to take proceedings against that leader for a breach of the Leadership Code.
24. If the Commission after inquiry considers that any person should be prosecuted for a breach of a provision in any law prohibiting acts or omissions constituting discriminatory practices, it may refer the matter to the Public Prosecutor with a recommendation that proceedings be instituted against that person for breach of the relevant provision.
25. (1) No proceeding, opinion or expression of the Commission shall be reviewable in any court.
(2) No proceeding, either criminal or civil, shall lie against the Commission or any member or officer of the Commission, for anything done or said or omitted by the Commission or by any member or officer of the Commission or any such police officer in discharging the responsibilities or orders of the Commission under the Constitution or any law unless it is shown that the Commission or any of the above person acted in bad faith.
Commission may make rules and publish guidelines etc.
26. (1) The Commission shall have the power to make rules regulating its procedure in respect of any investigations it may conduct and the manner in which it makes recommendations and make rules and publish guidelines as recommended in Chapter 3.
(2) Any rules so made or guidelines published may be disallowed by parliament in the same manner as parliament may disallow any regulation.
27. (1) The provisions of any law concerning the Commission shall not in any way limit or affect the provisions of any other law under which any remedy or right of appeal is provided for any person, or any procedure is provided for the inquiry into or investigation of any matter.
(2) The powers conferred on the Commission may be exercised notwithstanding any provision of any law to the effect that any administrative action is final or may not be appealed against.
28. The Prime Minister shall be the Minister who acts as Spokesman for the Commission relation to matters concerning the Commission arising in the National Executive Council or in the National Parliament.
29. The Commission shall, within a reasonable time after its establishment, and after consultation with the Public Solicitor, endeavour to set up branch offices of the Commission in some of the provinces and shall make suitable arrangements with the Public Solicitor so that an officer of one or other of these two institutions may act as agent for the institution to which he is not attached.
Note: The Committee envisages close co-ordination of the work of the Public Solicitor and the Commission so that unnecessary duplication of branch offices will be avoided.
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