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[F.A.Q.] [Help]PNG Constitutional Planning Committee Report 1974 |
Constitutional Planning Committee Report 1974
CHAPTER 12
1. In the government of any country, a vital role is performed by the various public services - that is, those people who work for government departments, statutory authorities and where they exist, provincial or state governments. It is on these people that governments rely for much of their professional and technical advice, and it is they who are responsible for implementing government policies. Their role is particularly important in new nations where governments are usually more actively and directly involved in the development process. It follows that the arrangements made for the overall control and supervision of the pubic services are fundamental to the success of any government in carrying out its improvement programme and in the provision of services for the people.
2. In considering this question, we have been guided by three basic principles:
(1) the need to ensure that any government of the day has a permanent body of officers who will serve it loyally and impartially, and who have been appointed to their positions on the basis of merit;
(2) the need for the government to have control over the management of the public services so as to ensure that they do the job they are required to do with maximum efficiency and economy; and
(3) as an important aspect of both (1) and (2) - the need for co-ordination of the various government departments and statutory authorities in respect of both personnel matters and government policies on conditions of service and establishments.
3. In order that the first two principles may be fully implemented, we propose that two separate bodies be established:
§ a Public Services Commission, responsible for personnel matters, and
§ A Department responsible for management matters in the public services.
4. By personnel matters, we mean matters about individual public servants and other officers. Thus, with the exception of senior positions explained later, the Public Services Commission would have the final power to decide such matters as -
§ whether a particular person should be appointed to a job in a government department;
§ whether a particular public servant should be transferred or promoted to a higher job;
§ whether a particular public servant should be fined, demoted or dismissed for doing something wrong.
5. By management matters, we mean matters about groups of public servants, or about the public service as a whole. Thus, the Department responsible for management matters would have the responsibility for such things as -
§ size and organisation of government departments, including classification of positions (that is "establishments");
§ efficiency and economy of departments;
§ conditions of service - that is, salary scales, rules about leave and allowances, etc;
§ recruitment, training and localisation of staff.
6. In practice, both the Commission and the Department would be able to delegate some of these functions, and this is mentioned later.
7. Our proposal will mean dividing the present Department of the Public Service Board into two. However, to achieve the third principle of co-ordination, both bodies will have jurisdiction much wider than that exercised at present by the Public Service Board. This division is found in many new states, especially those which were formerly British Territories in Asia and Africa. It is, in fact, more usual than the system we have inherited from Australia.
8. In order to have career officers who will provide the government of the day with loyal and impartial service, we believe that the Public Services Commission, as the body to determine matters which vitally affect those officers as individuals, should be independent. We have also found that opinion in all parts of the country strongly supports an independent body of this kind so that, for example, merit should be the major criterion for decisions on appointments and promotions, rather than personal friendships and ethnic or political affiliations.
9. We propose that the Public Services Commission should comprise four members who, together, would be broadly representative of the various areas of the country. They should be appointed by the National Executive Council, but only after the posts have been advertised and the First Parliamentary Committee has been consulted on the candidates available for appointment. As in the case of other positions, the requirement for consultation is intended to help bring about some consensus on important appointments and to avoid their becoming the subject of contentious political debate. To help ensure that the Commission enjoys widespread confidence and does not become dominated by one man, we recommend also that the position of chairman be rotated annually among its members.
10. The tenure of members of the Commission should be the same as that of other constitutional office-holders, that is six years, but with an initial term of three years during a ten-year period from the date when the Constitution comes into force. Members would be eligible for reappointment for six-year terms but, if not reappointed, they would be entitled to a position at a salary and on conditions not less favourable than those which they enjoyed at the time their term of office expired.
11. We propose that there should be two main limitations on the independence of the Commission. First, it should be subject to general policy directives of the National Executive Council, but any directives of this kind must be tabled in the National Parliament. An example of a general policy directive would be an instruction to ensure that the senior positions in any department are not dominated by officers who come from one particular area of the country.
12. We support the widely accepted principle that the government must have confidence in those who have the major responsibility for tendering it advice and carrying out its policies.
13. Secondly, therefore, although the Commission would be consulted on the respective merits of the candidates, it should be the National Executive Council that selects persons to be appointed Heads of Departments and also those to be appointed to a number of other senior posts which involve special statutory responsibilities. For some of these appointments the appropriate Parliamentary Committee should be consulted also. We propose, in addition, that all these positions be advertised so that people both within and outside the public services may apply.
14. We have also made recommendations concerning the tenure of Heads of Departments and other senior officers and office-holders. We support the practice that has been adopted by the present government of making these appointments on a relatively short-term basis. We believe that there are considerable advantages in providing maximum flexibility in the top two or three levels in departments and statutory authorities rather than accepting the rigid procedure whereby they would be headed by the same men for as long as perhaps twenty-five years. In a period of rapid change and unforeseeable developments, it is hard to justify appointing a thirty year old man as a Head of Department until he becomes, say, sixty.
15. We propose therefore that Heads of Departments and other specified officers and office-holders be appointed for an initial term of four years (three years during the ten-year period from the commencement of the Constitution), and be eligible for reappointment for further four-year terms. If not reappointed they would revert to positions no lower in salary or classification than those they held immediately prior to their appointment. The effect of this proposal might well be a pool of senior administrative officers with varied experience who would be available for appointment to positions in the top two or three levels throughout the public services. In keeping with this approach, we propose also that the holders of top positions should, like the constitutional office-holders, retire from them at the age of fifty-five unless the National Executive Council approves their reappointment for further terms until they reach the age of sixty.
16. For many years to come Papua New Guinea is likely to be short of skilled manpower. In view of this, we recommend reducing the barriers between those employed in government departments and most statutory authorities so that for the purposes of appointments, promotions, transfers, dismissals and disciplinary control, all these officers would constitute a single national service under the Public Services Commission. We recommend further that this "umbrella" arrangement should include those public servants working for provincial governments. While both statutory authorities and provincial governments would retain their separate autonomy in matters of policy, the arrangement is intended to allow greater flexibility in the allocation of staff from an overall national viewpoint.
17. At present selection committees in the public service comprise a representative of the Public Service Board as chairman, a representative of the department in which a vacancy occurs, and a representative of pubic service organisation (the P.S.A.). To safeguard the legitimate interests of statutory authorities and provincial governments, we propose that the departmental representative on these (and any similar) committees or boards be replaced where appropriate by a representative of the statutory authority or provincial government concerned.
18. In the case of provincial appointments, however, this arrangement would apply only to senior posts. It would be impracticable to extend it to all other positions as there could be as many as thirty to forty of the same kind advertised at any one time. For these appointments we propose that selection be made by a national committee, and that a provincial government have the right to reject a proposed appointment to the province instead of having direct representation on the selection committee.
19. We envisage that senior appointments (for which provincial governments would be directly represented on selection committees) would include the Provincial Secretary, his deputy, the Provincial Planner, the senior officers from each Department (e.g. the present District Health Officer, District Superintendent of Education, District Agriculture Officer, etc.), and possibly the successor to the present Assistant District Commissioner in charge of a sub-district.
20. Finally, we propose that the Commission be empowered to delegate some of its powers to Heads of Departments, as at present, and similarly to the administrative heads of statutory authorities and to provincial secretaries. This delegation would normally include disciplinary control.
21. While it is important that individual personnel matters should be mainly the responsibility of an independent Commission, we believe that it is no less important that the government of the day have full control over management questions - including conditions of service, establishments, manpower-planning, recruitment, training and generally the efficient and economic operation of departments. For these matters the government is politically responsible to the Parliament and control over them is vital to the successful implementation of government policies - especially where, in a new nation, the public services must be moulded to suit the needs of change and development.
22. We therefore propose that management matters be dealt with by a government department under the direction of the Prime Minister or a Minister assisting him in respect of the public services. In practice, these functions might be carried out by a division of the Prime Minister's Department, but in any case, the department or division should be under the supervision of a person with the status of a Head of Department.
23. In line with the "umbrella" arrangement for the Public Services Commission, we recommend that, in addition to its comprehensive functions in respect of government departments, this new department should have special responsibility for administering and co-ordinating government policy on conditions of service and establishments for departments, statutory authorities and provincial governments.
24. The reasoning behind this proposal again relates to a situation in which, for some time to come, Papua New Guinea will be short of skilled manpower. In this situation it cannot afford the luxury of various parts of the public services having their own different conditions of service and different policies on establishments. In practice this can lead them to vie with each other for staff by offering superior conditions to the detriment of the national interest.
25. We do not recognise, however, that statutory authorities may have legitimate reasons for varying their conditions of service and internal structures. We have therefore recommended that in carrying out this special role, the Department responsible for management matters should consult closely with the departments, statutory authorities and provincial governments concerned so that full account is taken of any circumstances that are peculiar to them. Thus, for example, in respect of conditions of service, there are likely to be many basic conditions that apply to everyone, and then variations which apply to specific cases.
26. In addition, we have provided for the delegation to departments, statutory authorities and provincial governments of the responsibility for establishment matters up to a specified level. We envisage, for example, that subject to agreement on the general structure, they should be permitted freedom to arrange their own establishments to the level immediately below that of branch heads. This follows a recent decision of the Public Services Board which restricts its direct control to the top 30 percent of the public service.
27. Under these proposals, the jurisdiction of the Public Services Commission will not extend to the Defence Force, the Police Force, the Local Government Service Commission, the Teaching Service Commission, the Universities in respect of their academic staff, and other authorities that may be excluded by law. We have recommended, however, that the operation of the Local Government Service Commission and the Teaching Service Commission be reviewed in order to determine whether local government officers and teachers should also be brought within the jurisdiction of the Public Services Commission, possibly with appropriate modifications to the general arrangements we have outlined.
28. In respect of co-ordinating policies on conditions of service and establishments, there would appear to be less difficulty in extending the jurisdiction of the Department responsible for management matters. Exceptions would be the Defence Force, which, unlike other groups, has no staff association; and in respect of establishments only (not conditions of service, which should be co-ordinated by the Commission), the academic staffs of the universities.
29. Various office-holders specifically provided for in the Constitution are further exceptions. We have proposed also that statutory authorities might be specifically excluded by law, but the intention here is that only in exceptional circumstances should such an authority be excluded.
30. We have been concerned about the concentration of public servants - often the most able and experienced - in the national capital and certain district headquarters. This can only encourage elitism and increase the gap between pubic servants and the rural people who constitute the great majority of our population. Our proposals for a system of provincial government should go some way towards countering these tendencies, but we feel that additional specific measures are needed to further the national goal of equalising opportunities.
31. We therefore recommend that special incentives be established in order to attract able and well qualified public servants and teachers to serve in the remoter and less wealthy or developed areas of the country. These incentives might take various forms. We submit three: supplemented increments during rural service; salary bars which are surmounted by undertaking rural service; and rural service constituting a necessary qualification for senior positions.
Right of Ministers to lay charges
32. Under the present public service legislation there is provision for charges to be laid against public servants by their departmental heads, and against departmental heads by the Public Service Board, in respect of various offences. We envisage that this system will be maintained but feel that it should be extended so that Ministers have similar rights to lay charges against members of their Departments. Such charges would be heard by a special tribunal which is presided over by a judge and includes a representative of the employee organisation.
33. It is perhaps unlikely that action of this kind would be taken very often, but the existence of the right would mean that a Minister who is genuinely concerned that charges have not been laid when they should have been, would have the opportunity of taking up the matter himself. It should also mean that a Minister would be cautious about making allegations that he is unable to have substantiated. In short, we see this proposed procedure as a "safety valve" for situations which, although they may be infrequent, are invariably difficult when they do occur.
34. Another question to which we have given much consideration is the difficult one of the extent to which public servants, and other government employees such as teachers, policemen and members of the Defence Force, should be allowed to participate in political activity. While we recognize that they are entitled to certain political rights common to all citizens, there is the need also for some restrictions if they are to serve the government of the day impartially.
35. Proposals in other chapters disqualify public servants and other government employees from being members of the National Parliament and the provincial assemblies. We recommend that a similar disqualification apply to membership of local government councils and executive positions in other bodies exercising local government functions. In addition to more specifically political considerations, it seems to us that the country can ill-afford a situation where the attention of government employees is divided between their normal duties and the activities of local government bodies in which they hold office.
36. The case of political party membership is somewhat different. We agree in principle with the proposition that government employees should be free, in their private capacity, to make a contribution to the political life of the country, but again some restrictions and safeguards appear to be necessary. We have concluded that public servants and other government employees should be allowed to be members of political parties (or political associations) but that they should not hold any executive positions in such organizations. We recommend accordingly.
37. We recommend also that it be an offence for a public servant or other government employee to use his official position in order to influence others in favour of his party; that membership of a particular party should not be taken into account in promotions or transfers; and that a public servant or government employee who is a member of a political party should not be associated with the conduct of elections except in the capacity of a scrutineer.
38. As on other subjects, our proposals on the public services are designed to meet the rapidly changing situation in a new state. We believe that the two different kinds of demands -
§ a career service in which there is reasonable protection for individual public servants; and
§ firm government control over the management of the public services;
are best met by dividing personnel and management matters between the two bodies we have proposed. If a single Public Service Board or Commission deals with both, there will almost certainly be confusion between those matters in which the government has the right to direct what should be done, and those in which it doesn't have this right. Sooner or later conflict would almost certainly arise between the government, the Board or Commission, with the possible result that the Board would eventually lose its independence in dealing with such matters as appointments and promotions.
39. Under the system proposed there will need to be co-operation between the Commission and the Department. However, there should be no doubt that with clearly drawn exceptions on the general policy, the Commission acts independently. And when it comes to management matters - such as the reorganization of departments and creation of new positions (establishments) or localisation and training policy - the government has the right to direct what must be done.
40. Finally, the proposed "umbrella" arrangements should help to discourage any tendency towards bureaucratic empire-building which would obstruct the allocation of manpower in accordance with national priorities and policies. The government must be able to establish its priorities and policies in the light of the needs of the country as a whole.
A. PUBLIC SERVICES COMMISSION
1. There shall be a Public Services Commission comprising four members.
2. The members of the Public Services Commission shall be appointed by the National Executive Council upon consideration of a submission from the Prime Minister, or a Minister assisting the Prime Minister in respect of the Public Services, prepared after consultation with the First Parliamentary Committee.
3. The members of the Public Services Commission shall be indigenous Papua New Guineans and, together, shall be broadly representative of the various areas of the country.
4. The provisions for disqualifications from appointment and continuance in office of members of the Public Services Commission, their tenure, removal from office and other conditions of service, are included separately in Chapter 14 "General".
5. The position of Chairman of the Public Services Commission shall be rotated annually among its members so that, in any period of four years, no member shall serve as Chairman for more than one year.
6. Subject to the Constitution, the Public Services Commission shall have the power to appoint persons to be public officers, and to promote, transfer, dismiss and exercise disciplinary control over such officers.
7. (1) In respect of the powers of the Public Services Commission under recommendation 6 above, the term "public officers" -
(a) includes officers employed in or by:
(i) government departments;
(ii) provincial governments; and
(iii) statutory authorities.
Subject to clause (2), "statutory authorities" means all public authorities, corporations and other bodies established by enactment of the National Parliament except the Defence Force, the Police Force, the Local Government Service Commission, the Teaching Service Commission, the Universities in respect of their academic staff, and such other statutory authorities as may be specifically excluded by law.
(b) does not include -
(i) the following holders of public office -
§ Auditor-General
§ Chief Justice and other Judges of the National Court of Justice
§ Electoral Commissioner
§ Magistrates
§ Members of the Judicial and Legal Service Commission
§ Members of the Ombudsman Commission
§ Members of the Public Services Commission
§ Public Prosecutor
§ Public Solicitor
§ Other public office-holders prescribed by law;
(ii) except where otherwise provided by law, members of boards of statutory authorities defined in (a) above; and
(iii) persons employed directly by provincial governments.
(2) The operations of the Local Government Service Commission and the Teaching Service Commission should be reviewed in order to determine whether local government officers and teachers should be brought within the jurisdiction of the Public Services Commission in the manner of employees of other statutory authorities under recommendations 6 - 9, with any appropriate modifications.
8. (1) For the purposes of appointments, promotions, transfers, dismissals and disciplinary control, public officers employed in or by government departments, provincial governments, and statutory authorities (as defined in recommendation 7(1)(a) above) shall constitute a single national service.
(2) A representative of the provincial government or statutory authority concerned shall take the place of a departmental representative on any board or committee of the Public Services Commission which deliberates on the appointment, promotion, transfer, discipline or dismissal of a public officer employed by a provincial government or statutory authority; and in any such matter where powers are normally exercised by a Departmental Head, they shall be exercised by the Provincial Secretary or the administrative head of the statutory authority concerned -
provided that, in the case of provincial government officers other than senior officers, a provincial government shall have the right to reject a proposed appointment, promotion or transfer to the province instead of having direct representation on the board or committee concerned.
Note: "Senior officers" of provincial governments would include the Provincial Secretary, his deputy, the Provincial Planner, the senior officers from each Department (e.g. District Health Officer, District Superintendent of Education, District Agriculture Officer, etc.), and possibly the successor to the present Assistant District Commissioner in charge of a sub-district.
9. The Public Services Commission may, by direction in writing, delegate any of its powers to any one or more of its members, or to any Head of Department, Provincial Secretary or administrative head of a statutory authority.
10. (1) In the exercise of its functions under recommendation 6 above, the Public Services Commission shall be subject to the direction of the National Executive Council only in matters of general policy, as conveyed to it in writing by the Prime Minister or a Minister assisting the Prime Minister in respect of the Public Services.
(2) Every general policy directive issued under clause (1) above shall be tabled in the National Parliament by the Prime Minister or a Minister assisting the Prime Minister in respect of the Public Services -
(a) if the Parliament is meeting, within seven days of its being issued; or
(b) if the Parliament is not meeting, within seven days of the commencement of the next meeting of the Parliament.
(3) Except in matters of general policy, the Public Services Commission shall not be subject to the direction or control of any other person or authority in the exercise of its functions under the Constitution.
11. The Public Services Commission shall present to the Speaker for tabling in the National Parliament an annual report concerning the exercise of its functions under the Constitution.
12. Before an appointment is made to any senior position under recommendations 13 - 15 below, notification of the vacancy shall be published in the Government Gazette, and the position shall be the subject of general advertisement.
13. Heads of Departments shall be appointed by the National Executive Council upon consideration of a submission from the Minister responsible for the department concerned, prepared after consultation with the Public Services Commission.
14. The following public officers and office-holders shall be appointed by the National Executive Council upon consideration of a submission from the Minister responsible for the department or statutory authority concerned, prepared after consultation with the Public Services Commission and the appropriate Parliamentary Committee:
(a) (i) Government Statistician and Surveyor-General (who are Boundaries Commissioners of the Electoral Commission); and
(ii) Registrar-General (who is responsible for the registration of political parties and associations).
(b) (i) Chairman of the National Broadcasting Commission;
(ii) Director of the Central Planning Office;
(iii) Member of the Local Government Service Commission;
(iv) Member of the Teaching Service Commission; and
(v) Such other public office-holders as may be specified by law.
15. The following public officers and office-holders shall be appointed by the National Executive Council upon consideration of a submission from the Minister responsible for the department or statutory authority concerned, prepared after consultation with the Public Services Commission:
(a) National Government's senior representative in each of the provinces;
(b) Chief Collector of Taxes;
(c) Chief Fire Officer;
(d) Commissioner for Local Government (pending the outcome of the CPC recommendations on provincial government);
(e) Comptroller of Customs;
(f) Controller of Corrective Institutions;
(g) Director of Bureau of Industrial Organizations;
(h) Director of Civil Defence;
(i) Electricity Commissioner;
(j) Housing Commissioner;
(k) Registrar of Cooperative Societies;
(l) Registrar of Savings and Loans Societies;
(m) Valuer-General; and
(n) such other public office-holders or officers as may be specified by law.
16. Heads of Departments and other public officers and office-holders appointed under recommendations 12 - 15 above -
(a) shall be appointed for an initial term of four years, and may be reappointed for successive terms of four years -
provided that, during the period of ten years from the date the Constitution comes into force, the initial term of appointment shall be three years;
(b) if not reappointed, shall revert to positions, classifications and salaries not lower than those they held immediately prior to their appointment;
(c) shall retire from their positions at the age of fifty-five years, unless in each case the National Executive Council approves extensions of term to a maximum age of sixty years; and
(d) may be transferred upon a direction by the National Executive Council
provided that the position to which he is transferred bears a salary and other conditions of service not inferior to those he was receiving prior to his transfer.
C. DEPARTMENT RESPONSIBLE FOR MANAGEMENT MATTERS
17. There shall be a department responsible for management matters in the Public Services (referred to below as "the Department") which shall be under the direction and control of the Prime Minister, or, by delegation, of a Minister assisting the Prime Minister in respect of the Public Services.
Note: The Department may, in practice, be either a division of the Prime Minister's Department or a separate department, but it shall be under the supervision of an officer with the status of a Head of Department.
18. The Department shall deal with all management matters relating to government departments, including those concerning conditions of service, establishments, manpower-planning, recruitment, training, and generally the efficient and economic operation of departments.
19. (1) The Department shall have special responsibility for administering and coordinating government policy on conditions of service and establishment matters in -
(a) government departments;
(b) provincial governments (except in respect of persons employed directly by those governments); and
(c) statutory authorities (as defined in Note below).
(2) The Department shall carry out this responsibility in consultation with the individual government departments, provincial governments and statutory authorities concerned so that due account is taken of any circumstances peculiar to them.
(3) With the approval of the Prime Minister or a Minister assisting the Prime Minister in respect of the Public Services, the Department may delegate to government departments, provincial governments and statutory authorities the responsibility for establishment matters up to a specified level of appointment.
20. The Department may, if requested to do so by any provincial government or statutory authority, provide it with assistance and advice in the field of any of the functions it exercises in relation to government departments.
Note: In respect of the functions of the Department, "statutory authorities" means all public authorities or corporations established by enactment of the National Parliament, but shall not include the Defence Force, the Universities in respect of their academic staff (establishment matters), and such other statutory authorities as may be specifically excluded by law.
21. The Prime Minister, or Minister assisting the Prime Minister in respect of the Public Services, shall table in the National Parliament an annual report from the Department concerning the exercise of its functions and the state of the Public Services generally.
D. GENERAL
22. (1) In keeping with the national goal of equalising opportunities in different parts of the country, and in order to ensure that the remoter and less wealthy or developed areas of the country should not be further handicapped by difficulty in obtaining the services of able public servants and teachers, incentives should be introduced to attract public servants and teachers to serve, at least for a period, in those areas.
(2) Such incentives might take the form of, for example -
(a) supplemented increments or some other monetary bonus during a period of, say, two to three years spent in such an area;
(b) salary bars which would be surmounted by undertaking service in such areas; and
(c) bars to appointment above specific senior levels unless service in such areas has been undertaken.
(3) For the purposes of this scheme, areas and government stations should be graded according to their degree of remoteness, etc.
23. (1) Ministers shall have the same rights as Departmental Heads to lay charges under public service legislation. Charges laid by ministers against public servants below the level of Departmental Head shall be heard directly by an independent tribunal consisting of -
(a) a Judge of the National Court, who shall act as chairman;
(b) a public servant other than a Departmental Head, appointed by the National Executive Council;
(c) a public servant other than a Departmental Head, chosen by public service employee organisations.
(2) In respect of Departmental Heads, Ministers shall have the same rights as the Public Services Commission to lay charges under the public service legislation. Charges laid by Ministers against Departmental Heads shall be heard by an independent tribunal consisting of:
§ a Judge of the National Court, who shall act as chairman;
§ a Departmental Head, chosen by the National Executive Council;
§ an office-holder of one of the public service employee organisations, chosen by those organisations.
24. A public servant shall not hold the position of a local government councillor or be an office-holder of a local body exercising governmental functions.
25. Public servants may be members of political parties or associations subject to the following conditions:
(a) no public servant shall hold an executive position in any political party or association;
(b) it shall be an offence for any public servant to use his official position to influence any other person in favour of the political party or association of which he is a member;
(c) no public servant who is a member of a political party or association shall be associated with the conduct of any national, provincial or local authority election except in the capacity of a scrutineer;
(d) membership of a particular party or association shall not be taken into account in the promotion or transfer of any public servant.
Note: For the purposes of recommendations 25 and 26 above, the term "public servant" shall include departmental officers, teachers, and members of the Police and Defence Forces.
26. Whenever the Government is engaged in negotiations with a foreign government, institution or corporation (including international bodies), the government's representatives shall negotiate in accordance with the directives of the National Executive Council or of a Minister, as the case may be, and, whenever practicable, a Minister shall lead them in the negotiations.
* * *
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