Community response to the Maladina Attack on the PNG Ombudsman’s powers

Update 16/04/10

Seeing the discussions on the Maladina amendments, I’ve got here the Ombudsman’s covering letter and submission on the proposed amendments to the Leadership Code:

——————————————————————-

By Paul Oates

A petition has been raised by Transparency PNG in response to the recent proposal in PNG Parliament to weaken the PNG Ombudsman’s powers. A Community Coalition Against Corruption is now asking people to sign this petition to help prevent this proposal from going ahead. This is a very important step in PNG’s history.

The study of history is essential if one is to understand human nature.
Afterall, we as a species haven’t changed since we evolved. Nothing changes except the circumstances we live in. As an example, reflect on the circumstances 2,000 years ago in ancient Rome.

Quis custodiet ipsos! Custodes? Juvenal 60 -130 AD

‘Who is to guard the guards themselves?’

When the separation of government powers becomes a murky, grey area, society starts falling apart. If PNG government ministers have now started to see themselves as rulers and above the law then they have lost sight of their role as the people’s representatives.

Why would this be so? Juvenal comes up with another apposite quote:

‘Nemo repente fuit turpissimus!’

“No one ever reached the depths of wickedness all at once.”

Hitherto, traditional PNG culture helped repress any dissention and promoted the ‘big man’ concept. Little by little over the last 30 odd years, the public’s individual rights have been continually ‘white anted’ away.

But when people start climbing the mountain of awareness, they see things from a whole new perspective. Younger PNG people are now prepared to draw a metaphoric line in the sand.

We are witnessing PNG’s coming of age.

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49 thoughts on “Community response to the Maladina Attack on the PNG Ombudsman’s powers

  1. Hi there,

    Initially I was on the bandwagon criticizing the Maladina Amendments. However, after carefully reading the Amendments and reviewing the historical performance of the Ombudsman, I am beginning to realise that there may be positive implications of the Amendments on the overall performance of Ombudsman.

    For example the Maladina Amendments in fact forces the Ombudsman to act upon complaints within 30 days. There are presently so many outstanding issues which we the public would like to see dealt with, for example the Taiwan issue and the Singapore bank accounts etc. The Amendments also ensures that case are brought to the Public Prosecutor within 2 years. A lot has been said about Section 27 which to some extent has reduced the Ombudsman powers, but it appears the reduction is relatively small. Section 27 still remains when it was recently passed.

    I have seen recently that Parliament is making major Constitutional changes affecting the Courts and Judges e.g. increasing their age of retirement and increasing the jurisdiction of the District Courts, and perhaps it is time to review the Ombudsman after 35 years.

  2. Paul,

    I’m assuming the scenario where Parliament does not sit the required number of days as required by the Constitution.

    If a complaint was made to the Ombudsman, Section 20 of the Maladina Amendment would compel the Ombudsman to act within 30 days upon receiving such a complaint, and further the Ombudsman would have the power under Section 20 to also issue a directive to the Speaker to recall Parliament so that the Constitutional requirement for the number of sitting days for Parliament is achieved.

    Under the existing law however, the Ombudsman firstly is not legally obliged to consider complaints within a given time frame, and further the Ombudsman does not have the power to issue such directives to order the Speaker to recall Parliament where there is an obvious breach.

    Sure one can argue that the Maladina Amendments will enable Politicians to engage more freely in business but the Section 8 of the Maladina Amendments is quite clear in that a Leader concerned must still notify the Ombudsman of all his business transactions. In addition a Leader, his spouse and children are prohibited from entering into a business dealing where there is a conflict of interest.

    The current Organic Law on the Duties and Responsibilities on Leadership was suitable in 1975 when most of the then Papua New Guinean Leaders were not involved in the business sector. However, lets face the fact, today like in Australia most Papua New Guinean Leaders have investments and business interest in one form or another.

    After reading the Maladina Amendments I can see positives. Can someone point me to specific negative points in the Amendments rather than generalizing.

  3. Hi Fred and Sony,

    thanks for your input and perspectives. While I can’t claim to be an expert in anything, the following points seem fairly straighforward.

    In regard to how much time it should take to investigate a matter, logically that would be governed by how much material there has to be reviewed. It also may well be affected by how much resources are either allocated to the matter or indeed much resources are made unavailable by the government for the Ombudsman Commission to do fully perform their work.

    It may well be time to have a clsoe look at the PNG Constitution and have a public debate and referendom perhaps. There have been some very interesting discussions about this matter of this bolgsite. The central problem that should first be addressed is: How do you fully engage the PNG people in this process?

    All Australian politicians and their close family are required to publically reveal their business interests. If this aspect were fully enforced in PNG, I wonder what the PNG public might find out? When leading politicians don’t submit even their tax returns for many years it begs the question of ‘Why not?’

    The whole issue or the Malandina Amendment raises some other questions as well. If this Amendment is in PNG’s best interests, why wasn’t it first debated in Parliament prior to it being moved? Why weren’t all the details revealed to the public? Why is there a need to change PNG’s Constitution at all?

    If people are calling for the issue to be debated and closely examined prior to it becoming law, where is the harm in that? It sounds like proper democracy at work and something that some would suggest, PNG today desparately needs. PNG’s traditional method of determining what should be done is to debate the issue until everyone has had their say. Why shouldn’t this happen with the particular issue as well?

    In a recent interview broadcast on Radio Australia with PNG’s Chief Ombudsman and his Deputy, Mr Manek makes it clear why the Maladina Amendments are not in PNG’s best interests. The transcript of the interview is as follows:

    Radio Australia 30 Mar 10

    THOM: This is not the first time the member for Esa’ala in Milne Bay province has submitted a proposed amendment to the Constitution.

    In May of 2009 he submitted the same proposal, but withdrew it due to procedural irregularities.

    Chief Ombudsman, Chronox Manek, says after the first submission failed, the commission called all members of parliament to debate this before the proposal is read in parliament again.

    MANEK: There was no response made following the Commission’s request for dialogue by the Honourable Moses Maladina or his committee, hence the commission is now calling on again parliament to delay debate on the bills until there was or has been adequate public discussions and consultation with stakeholders and after having read the Commission’s submission that had gone before them, dated 8th of May 2009.

    THOM: Mr Manek says the proposals will hamper the ability of the commission to enforce the Leadership Code and make it harder to hold leaders accountable for their misconduct.

    MANEK: Some of the areas of concern include the amendments having the effect of making the work of the Commission more difficult. Secondly, the creating of preferential treatment of leaders, especially in relation to criminal offences, for instance missed applications. If a leader was charged or brought and processed under the leadership code for mis-application, that amendment will bar him from undergoing any criminal prosecution.

    THOM: The Commission says in relation to the amendment of Section 27 subsection 4 of the Constitution, it see that there is no need for a change.

    Mr Manek says section 27-4 is the right arm of the Commission’s operations, and if removed it will more or less cripple the Commission’s duties and responsibilities.

    He also adds that section 27-4 has hardly been used in cases against leaders.

    MANEK: The Commission invokes the use of 27-4, 27 sub-section 4, very, very sparingly and only in very, very exceptional circumstances where there is prima facie evidence. We don’t just go do that. We must find that there is prima facie evidence of possible misuse of funds. This is again intended to protect the integrity of leaders from potential conflict of interest or possible breach of the leadership code, whilst the matter is under investigation.

    THOM: The Commission stands on this, saying that amendments to the Constitution will breed corruption at all levels of government.

    MANEK: Section 27-4 of the Constitution is never, we say it’s never a hindrance to economic, social, cultural or infrastructural development of Papua New Guinea if again leaders were to do things by following the laws and processes that are available. The provision promotes transparency, accountability and good governance. So to amend this in any shape or form in our view is acting to invite corruption to flourish.

    THOM: Ombudsman, Phoebe Sangetari, says on the rare occasions the commission has used section 27-4 it saved millions of kina in public funds.

    SANGETARI: We have used it as Ombudsman has mentioned. We have used it before to protect misuse of public funds and millions. We cannot give you the figure. If we kept figures on how much we have protected in terms of public funds we have saved by issuing our powers under Section 27-4, it would go into millions, millions of public funds that we have protected, exercising our powers under this. So as Ombudsman said if they remove this we are helpless, leaders can do anything with public funds.

    THOM: The Commission is calling on the public to use this time to consult and debate the amendments before it is read the third time in parliament in May.

  4. Thanks for the indepth discussions just letting you all know that I’ve uploaded the Ombudsman Commissions submission on this post for you all to have a look at as well.

    Does anyone have anything in writing from Moses Maladina so that we can discuss on facts and potential implications.

  5. Hi Emmanuel,

    After reading Paul’s response and the interview by the Chief Ombudsman, perhaps the Commission should at least clearly set out exactly how the Maladina Amendments would affect their operations. As I see it the Amendments under the Organic Law on the Duties and Responsibilities of Leadership in fact gives to the Ombudsman additional powers to issue directives, and these powers are separate from the Ombudsman powers under Section 27 of the Constitution which hasn’t entirely been eradicated.

    So far comments against the Amendments have been too generalized particularly by the OC themselves. In this regard I would also agree with Sir Mekere Morauta that the Ombudsman should come clearly and more specially as to how their operations will be hindered by the Amendments. At this point in time after having a careful look at the Amendments I am not convinced by the OC’s arguments. The only problem I see from the Amendments is that it will put a considerable strain on the OC’s resources as they are compelled to act within certain time frames in responding to complaints and to bring matters before a tribunal or the courts within 2 years.

  6. Forcing the OC into a tight spot of 30 day response period, in my opinion, is unnecessary. As Paul stated above, due consideration must be given to resourcing and non/availability of information relating to a particular complaint before deciding any timeframes. It is a subtle move designed to choke the OC and let the crooks off the hook sooner rather than later.

  7. Correct. If you are being investigated, just stall and say you can’t find relevant documents for 30 days, then the OC has to stop. Also there is a “gag” clause which means the OC can’t publicly state that someone is under investigation and leaders don’t have to reveal their business interests. These items alone make the OC effectively powerless.

    One idea would be to create an independent commission against corruption (ICAC), a legal entity above the influence of Parliament and with a broader remit. The ICAC has been quite successful in Australia in bringing corrupt individuals to book, and not just politicians or employees of state organisations (which is all the OC is empowered to investigate).

    PS. I’d love to see a TV series like “Underbelly” about PNG politics and crime. Would anyone have the guts to produce it?

  8. Peter,

    Obviously you haven’t read the Maladina Amendments, more particularly Section 20. Under the amendment any delays etc. can only be caused by the OC. The amended section obliges the Ombudsman to act on complaints. My view is that the OC has been sitting on too many important issues for too long e.g. the Singapore accounts and the Taiwan issue etc. And the ‘gag’ provision you talk about is actually present in the existing law.

  9. John,

    why do you think the Ombudsman has been sitting on all these investigations? Is it understaffing, under funding or what?

    Given that the central thrust of the Amendment appears to be a weakening of the current Ombudsman’s powers and that it hasn’t been fully discussed prior to the Bill being presented and voted on, are we to think the people supporting the Amendment are right and the Ombudsman is wrong?

    What are your thoughts?

    1. Definately and absolutely the OC does require a review. Like any laws they are subject to change to become relevant to its environment but before I continue tupela tok piksa pastaim.

      1. After you have built your house any major design changes or amendments should always be done by referring back to the original plans and using the same materials so that the whole house still exists as one home. Not some house with an ugly extention.

      2. When you get a dog to guard your house, they have to be fed and you expect your dog to bark at everything that looks wrong and if someone hops the fence you want the dog to attack. They should not have to think about how to attack, they simply must attack as a detterent to all raskols and to stop them from entering your home in future.

      So coming back to our discussions. One would assume and expect that the same care and consideration given by the CPC to create our Constitution would be the same procedure taken when making amendments to our Mama Law. A key element of approaching anything to do with amendments to the Constitution is to ask yourself if the changes are in the spirit of what was intended by the CPC?

      After Maladina introduced his amendments in 2008 the OC wrote its advice and submission and made 109 copies for every member to read and to begin discussions on these amendments to our Mama Law. Only 2 members bothered to give a written response and none of those 2 was Maladina.

      So without any wide ‘consultation’ (which in s.225 of the Constitution states among other things that ‘…consultation must be meaningful and allow for a genuine interchange and consideration of views’), Maladina proceeded to force through his amendments.

      Immediately you can see that he had already started on the wrong foot. Why is there no respect for procedures? Wingti’s attempted Constitutional amendments in his term failed because of the same approach and disrespect for our Mama Law.

      But that’s the method of how Maladina wants to make extensions to our House, now what about the guard dog?

      It is true that some investigations have taken forever. It is also true that the OC is being given some extra powers, so why the fuss?

      Let’s start with the limitions like the s.18 four year limit and the s.20 (6)(7), 14 day notification limits. How can you set limitions on investigations in PNG? Knowing fully well how slow things move here, how can you honestly expect the OC to work within absolute time limitations without any mention of an increase in resources?

      And besides, why does the OC need to notify members that they are doing the wrong thing. If they are being investigated and they are going to court the same legal Service for courts that apply to us so called ‘ordinary citizens’ should be just the same for any member of Parliament.

      Why is it that we all feel that the OC should work harder with no resources when members of Parliament can increase their own salaries, discretionary funds and worse still approve payments for jets without any absolute deadlines to meet themselves on when our roads will be sealed or hospital supplies will reach aid posts? That poor guard dog is going to starve to death!

      But then you say, oh but s.16A makes heads of Departments ‘responsible for actions of their staff in relation to finances’. That’s not the OC’s job, they’re not there to follow up on govt policy and programs to see where money is going. That’s the Ministers responsibility. Stop passing the buck and weighing down the OC with extra work. If a Secretary missappropriates, then someone report it and the OC gets barking. Simple.

      You could add that the OC is getting heaps of other powers like: s.29 of the Constitution which gives the OC ‘power to make a directive to a leader to correct an action where the OC considers there is no serious culpability or the misconduct is minor’, or s.27 (1A) of the OLDRL which provides the ‘power to issue directives where it is of the opinion that there is no serious culpability or the misconduct is minor’, or s.20 (11)(b) of the OLDRL which provides that the OC can issue directives to correct conduct where there is no serious culpability or the misconduct is minor’

      But those powers only increase the chance for human error. In other words now you’re allowing the OC to have hand slapping sessions and to stop and decide whether stealing K1,000 is as bad as K1million. WTF??!!, just let the dog bite the raskol. You hop the fence, you meet the guard dog, no time for questions.

      I do not have the time to go through all the amendments tonight, but at the end of the day although you could continue arguing the merits of Maldinas effieciency amendments. The cost of what you stand to lose by legally increasing the chance of human error far outweighs the wrongs that could be achieved by simply sticking to an annual budget.

  10. Paul,

    I agree adequate funding and staffing would assist in addressing issues in the OC or any govt dept for that matter. However, I would only be guessing about what goes on in the OC office.

    The fact however remains, corruption is increasing at an alarming rate, and the OC with its current operation and under its existing legal structure over the last 35 years have not been able to reduce corruption.

    Presently even the courts are undergoing a restructure which have required constitutional amendments, for example the separation of the Supreme and National Courts so that each court will have separate Judges. The first reading was passed by Parliament in the last sitting by a vote of 85-0. The increase in the age of retirement for Judges was also passed, and the increase in the number of Judges and these required Constitutional and Organic Law amendments. The Jurisdiction of the District Court was also increased including the creation of District Court Judges. Mind you I must add here that all these amendments were initiated by Mr. Maladina himself.

    The question here however relates to the OC. And I am convinced that like the courts the OC should be reviewed after 35 years.

    The Maladina Amendments do not weaken the powers of the OC. The amendments in fact give to the Ombudsman, powers which the OC previously did not have. The OC now for example has the power to issue directives to a Leader to rectify a breach, failing which the Leader can be referred. This power is additional to the OC’s powers under Section 27 of the Constitution. There is a misconception that Section 27 will be rescinded. It still exists if anyone cares to read.

    We the Public must also get comfort knowing that the Ombudsman is addressing issues of corruption. For example we all know that Parliament failed to sit its required number of days last year. We also all know that the Opposition sent in a complaint against the Speaker to the Ombudsman as this was a clear breach of the Constitution by the Speaker and Leader of Government Business. What did the Ombudsman do? NOTHING!! Now it’s too late. However applying the Maladina Amendment we the Public will know that the OC will react to the complaint within 30 days. We will also know that the OC can issue to the Speaker a Directive to recall Parliament to sit the required number days pursuant to the Constitution. And we will know that if the Speaker fails to abide with this directive he would be faced with a potential referral to the Public Prosecutor for misconduct in office. At this point in time we don’t know what the OC is doing about this matter, nor do we know how long it will take for the OC to complete this case. Looking at their previous records this could take years.

    I am aware that the Parliamentary Ombudsman Committee headed by Mr. Maladina undertook a public inquiry in 2006 and early 2007 in which the Ombudsman participated under the Leadership of Ila Geno. The Ombudsman made submissions to this Committee. Parliament did not implement all the requests made by the OC but it did take into account some of the recommendations made by the OC. So Mr. Manek’s claim that the OC was not consulted is incorrect.

    1. Hi John,

      Some interesting information there and thank you for sharing. It always helps to put things into context.

      But 3 questions:

      1. Don’t all these missed opportunities and slow processing of complaints point to an under funded OC?

      2. If Maladina initiated the Justice system retsructures, then yes I congratulate him on his insight. But for these particular amendments why has the Parliamentary Ombudsman Committee been disbanded and why is he in such a rush?

      3. Can you please type out s.27 of the Constitution for us so we can all read it?

      Sent from my BlackBerry® smartphone from Digicel Pacific

      1. Emmanuel, here is Sec 27

        Constitution of the Independent State of Papua New Guinea

        Sec. 27 RESPONSIBILITIES OF OFFICE.
        (1) A person to whom this Division applies has a duty to conduct himself in such a way, both in his public or official life and his private life, and in his associations with other persons, as not–

        (a) to place himself in a position in which he has or could have a conflict of interests or might be compromised when discharging his public or official duties; or
        (b) to demean his office or position; or
        (c) to allow his public or official integrity, or his personal integrity, to be called into question; or
        (d) to endanger or diminish respect for and confidence in the integrity of government in Papua New Guinea.

        (2) In particular, a person to whom this Division applies shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by Subsection (1).

        (3) It is the further duty of a person to whom this Division applies–

        (a) to ensure, as far as is within his lawful power, that his spouse and children and any other persons for whom he is responsible (whether morally, legally or by usage), including nominees, trustees and agents, do not conduct themselves in a way that might be expected to give rise to doubt in the public mind as to his complying with his duties under this section; and
        (b) if necessary, to publicly disassociate himself from any activity or enterprise of any of his associates, or of a person referred to in paragraph (a), that might be expected to give rise to such a doubt.

        (4) The Ombudsman Commission or other authority prescribed for the purpose under Section 28 (further provisions) may, subject to this Division and to any Organic Law made for the purposes of this Division, give directions, either generally or in a particular case, to ensure the attainment of the objects of this section.

        (5) A person to whom this Division applies who–

        (a) is convicted of an offence in respect of his office or position or in relation to the performance of his functions or duties; or
        (b) fails to comply with a direction under Subsection (4) or otherwise fails to carry out the obligations imposed by Subsections (1), (2) and (3), is guilty of misconduct in office.

  11. Emmanuel,

    Emmanuel,

    I tend to agree with John. Going back through Hansaard you will see that the whole charter of the OC was to protect and enhance the integrity of Leaders. In fact it was anticipated at the time that the OC was to be seen as an extension of a Leaders office, a place where a Leader to go to for advice on various matters etc. so that ultimately the integrity of Leadership was to be protected. This was an additional role to the OC’s traditional role of investigating mal-administration. So the ‘…hand slapping sessions’ that you mention I believe falls within the ambit of the OC’s charter. It wasn’t the intention of the OLDRL to impose on the OC some form of undercover, secret agent or prosecutorial role to impound Leaders. That’s the role of the police..(police efficiency is another issue).

    In addition it is not right for a Leader to be referred to a Leadership Tribunal to be tried on a criminal matter where the proof required is the same as the civil standard of ‘balance of probabilities’, and the consequence being that he could lose office. Whereas everybody else in criminal matters the standard of proof is ‘beyond reasonable doubt’. The Maladina Amendments obliges the OC to channel criminal matters to the formal courts where not only is everyone tried equally i.e. both Leaders and Citizens but where a Leader if he is found guilty of a criminal wrong for example may be sentenced to imprisonment and he automatically losses office and restitution, if applicable, could also be obtained by a court order. A leadership Tribunal on the other hand only makes recommendations and does not have powers to imprison Leaders. So we avoid the costly and time consuming situation where a Leader is tried in a Leadership Tribunal and then again in the formal Courts.

    I however agree with your comment that the OC will have to be adequately resourced to undertake the Maladina Amendments, but at least the Amendments I believe are in the right direction..

  12. Hi there Emmanuel, I am a staff at Parliament and I agree that the OC submissions were circulated to all the Members. The then Chief Commissioner Ila Geno and Commissioner Nero also made verbal submissions to the Committee. I also recall the Late Mike Manning, John Toguata, John Nongorr, Bishop Barnes and others making their submissions before the Committee at the Administrative college hall in 2007.

    We must remember that it was the Parliamentary Ombudsman Committee that was tasked to do the review of the OC and NOT the OC themselves. So Emmanuel Mr. Maladina was not obliged to make formal submissions to the OC in this matter – it was the other way around.

  13. Emmanuel, additional information is that the Special Parliamentary Committee on the Ombudsman has not been disbanded. It exists for the full term of this current Parliament. Cheers

  14. Hi Margaret,

    you may be able to answer this query.

    If the Ombudsman has introduced the Findings of the Moti Report into the PNG Parliament and the findings call for, among others, the PM to be investigated and charged, why is this not being done? These are the findings of a legally constituted Commission headed by a PNG Judge.

    Under Sec. 27 it appears that this action could be viewed as a ‘direction’ from the Ombudsman and under the provisions of this Section, (1) those named could be ‘guilty of an offence’.

    Have I got that right?

  15. @ Sony
    Good point there about the Hansards highlighting the intention for Leaders to go to the OC for advice. That role should certainly be continued, I just fear that creating too much legal room for an individual’s opinion to decide if a matter is minor or not could lead us into more expensive and time consuming legal actions down the track. Especially with PNG’s history of legal challanges to the laws.

    I do agree with you however on a leader only being tried once, except for crminal matters for leaders to be dealt with by the police.

    @ Margaret
    Thank you for the clarifications, it seems I may have have gone off track there. But great to see someone from Parliament joining in the discussion.

    My point however was more to do with why such an important matter as a Constitutional amendment is not being discussed with ‘wide consultation’?

    @ Paul
    Thanks for providing the s. 27 of the Constitution. I shall have a read now.

    1. Emmanuel,

      To this old lapun, the issue seems clear and unambiguous. What the Ombudsman is saying in the Radio Australia interview (quoted above) is quite clear. If the law of the land hasn’t been broken, why is Sec 27 (4) a problem?

      To quote the PNG Ombudsman: “Section 27-4 of the Constitution is never, we say it’s never a hindrance to economic, social, cultural or infrastructural development of Papua New Guinea, if leaders were to do things by following the laws and processes that are available.”

      So if Sec. 27 (4) is a problem to some it can only mean one thing. Those who have a problem with Section 27 (4) of the PNG Constitution don’t want to obey PNG law and to be subsequently held accountable and charged.

      OK, hands up all those PNG politicians who don’t like Sec. 27 (4)?

      Now let me see….. what was the vote in Parliament again?

  16. Maladina’s Amendment Bill is just another of those manipulation of the law to suite the privileged minority, look at the US & Aussies, they let the investigations go without time limits until the judiciary concludes a closing.

    To be simple, if you are a crook MP, you have two loopholes; first 30 days to be off the hook or if you are in the hot seat, just play stall for another 2 years, then you’ll get off the hook.

    The irony is MPs agreeing to face-saving of 30 days & 2 years period.

  17. Paul & Kafu,

    Paul in response to your query with regards to the Moti case and Section 27.

    First your interpretation of Section 27 as a directive to Parliament is incorrect and not applicable in this case.

    Second, there is no reason why the OC cannot make the appropriate referrals against those implicated despite Parliaments decision.

    Thirdly I think Kafu still has a misunderstanding of the workings of the time frames of 30 days and 2 years.

    Cheers

  18. Thanks Margaret. So in regards to the Special Parliamentary Committee, what other amendments have they proposed besides the OC ones?

    I think its great to hear from someone inside so that we can better understand the mechanics of Parliamentary Proccedings etc.

  19. Hi Margaret,

    Many thanks for your response.

    I’m now a little confused about why the Ombudsman introduced the findings of the Moti report into the PNG Parliament. Can you suggest why that was done? If there will be no further action taken, why on earth was the PM so vitriolic in his condemnation of the Ombudsman?

    However, if the Ombudsman can make referrals against those implicated in the Report, why hasn’t he done so? Do you have any idea?

  20. To Emmanuel and Paul,

    1. The Special Ombudsman Committee headed by Mr. Maladina has been the most active Parliamentary Committee in recent times achieving success in terms of significant legislative reforms in restructuring the judiciary and the courts. Other Bills the Committee is working on now include;

    a. Bills for the Establishment of a Human Rights Commission. These Bills relate to the Constitution and the Organic Law.

    b. The Constitutional Amendment to have a permanent Supreme Court i.e. to have separate Judges for the Supreme Court and the National Court. (second reading schedule for the May sitting)

    c. Bill relating to the Retirement benefits for Magistrates, District Court Judges and Judges of the National and Supreme Court.

    d. The Bill for the establishment of the Parliamentary Ombudsman Committee similar to the PAC.

    d. The Committee is also reviewing the Public Service Management Act.

    2. Paul, there is a requirement for the OC to present its reports to Parliament. Parliament has the prerogative to either accept or reject the OC reports. However, the OC is not bound by Parliaments decision on a report and may still refer those implicated. Reasons as why the OC has not referred those implicated is something only the OC can answer.

    The Prime Minister has the right to speak on the report on the floor of Parliament on the basis of a ‘personal explanation‘ because he is named in the report.

    Finally the Section 27 provision of the Constitution was passed in the last sitting and is now Law. There is nothing preventing the OC from seeking an interpretation of its validity in the Supreme Court.

  21. Emmanuel,

    Reference is made to your questions. I agree that the OC has been inadequately funded and more resources are required to implement the Maladina Amendments. I believe that if the OC is properly resourced enabling them to implement the Maladina Amendments, we will have an effective OC pursuant to its original charter.

    I have taken the liberty to ask officials in Parliament as to why Mr. Maladina seems to be rushing the OC amendments. The short answer is that all the Bills Mr. Maladina’s Committee are initiating is part of a package of reforms affecting the judiciary, courts, Judges, Magistrates and the establishment of the Human Rights Commission etc. to make more effective the OC and also the nature of work which the OC has been involved with. For example having more Judges means Tribunals are accessible so there should not be delays in dealing with leadership issues. Another example is if a person is held in custody without a proper trial, its not only an OC matter but also a Human Rights issue which can dealt with by the Human Rights Commission. With the exception of the OC amendments there hasn’t been a problem with the other amendments going through Parliament.

    1. Thanks John, amazing what we can learn from some good discussions.
      There are some merits there, but procedures need to be sacred for our Constitution or else it undermines all the good he may be trying to do.

      But thanks again for enlightening us
      Sent from my BlackBerry® smartphone from Digicel Pacific

    2. Thanks John,

      This is very valuable information. If the OC amendments are only one part of the jigsaw, then one would have thought that the most logical process would be to bring all the other related amendments to other relevant pieces of legislations together to parliament in ‘one basket’ and have them debated both individually and collectively to assess both their individual and collective merits before their passage.

      If I was an MP, I’d be very nervous to pass the amendments in a piecemeal fashion when in fact they have been intended to have a high degree of correlation. What is the likelihood of being blindsided?

      1. David, maybe because they don’t appear to have the habit of discussing propsed amendments to law, they are perhaps clueless to what was being passed in the first place.

        So piecemeal or whole, it doesn’t make a difference to them. Just another paper on their desk.

        But in all seriousness it may have been the only practical way.

  22. Margaret,
    Tenkyu lon bekim blo yu. Ok 30 days for OC to decide whether to institute a case based on allegations. Fine, once the case in instituted, why would it take 2 years to conclude.

    The trick is, if last year OC has put alot of MP’s in the hot seat, this year the OC will receive little or less budget, so they are handicapped and arses in hot seat are cooled.

    Sorry Margaret, but the amount of corruption is so enormous into oblivion that people are viewing the actions of current government with such skepticism and negativity; no trust anymore whether we heading in the right direction.

    1. Kafu I’ll maintain that if there are no increased funds then there should be no time limitations.

      What would members think if the OC had powers to prosecute them if development targets were not met within say a 2 year limitation?

      1. Agreed Emmanuel.

        Imposing time limits on the OC is not the solution to improving the OC’s efficiency and effectiveness. It is a ‘band aid’ solution designed to cloud the real issues of funding and resource constraints that the OC faces in administering its mandate.

        Response time, turnaround time, etc are efficiency KPIs. And like all other KPIs, the best way to improving it would be to address the underlying constraints. The solution must be bottom up and not top down.

        I suspect the whole OC amendments have been brought about by a perceived ‘lack of performance’ by the OC. Has Maladina and his team conducted a comprehensive review of our OC’s performance and benchmarked that against what is considered to be ‘best practice’ to identify gaps and bottlenecks? Have they identified other responses such as appropriate funding and staffing required to make the OC more responsive than to simply change the laws?

        If the crux of the issue with the OC is performance, then I am of the view that changing of the laws may not be the best solution after all.

  23. Emmanuel, Kafu and David,

    I am a supporter of the Maladina Amendments, however I agree that with or without the amendments the OC still needs to be resourced if we are serious in our attempt to reduce corruption.

    The Maladina Amendments however, imposes additional work load on the OC and this will require additional funding. I was in the Public Gallery in Parliament at the time when Mr. Maladina made his submission on the OC changes, and if you look the Hansard report you will note that he specifically appealed to Government to make the additional funding available to the OC to enable the OC to effectively implement the Amendments. I don’t believe that it was his intention to stave the OC with resources and impose on the OC more work load so that the crooks can get away easily.

    I had spoken to certain MPs of the Maladina Committee earlier this year about the judicial reforms and more particularly about the OC amendments. The impression I got was of their shear frustration that the OC was not addressing many outstanding issues, and no one knew the reasons or what was going in the OC because of the so-called ‘gag’ provisions in the existing law which they claimed the OC was purposely using to conceal their inefficiency. They specially mentioned the clear case where Parliament did not sit its required number of days and couldn’t understand as to why the OC did not intervene after receiving the complaint. There was also a hint of allegation that members of the OC may be politically biased which caused the delays in investigating important cases, ( I am hoping that this is not true). I believe this was one reason for the inclusion of the time frames. The other reason was explained by Mr. Maladina in the Hansard report and that was a Member should clear himself of allegations before presenting himself to the people for reelection. Mr. Maladina also stated that senior Public Servants who wish to run for elections also had to have what he called ’a clean slate’ before they presented themselves to the people at elections, and putting a time frame of 2 years allowed this to happen.

    1. John,

      Thanks for that.

      If performance is the issue, then what is the best response? Legislative changes may well be part of the response. But have we already tried other non legislative responses to try and address the OC’s performance issues? And if the OC is presently under-resourced, then what is the guarantee this will improve once the proposed amendments are adopted?

      If they must change the laws, then I’d like them to introduce a new provision that says that once a leader is referred to the PP, a leadership tribunal will be set up and the case prosecuted to prove the leader’s innocence. That leader can not challenge the OC’s decision to refer them to the PP once their case with the OC reaches that stage.

      The OC is not the courts and its decision to refer anyone to the PP is not a pronouncement of that person’s guilt. As always, that leader is innocent unless proven otherwise by the leadership tribunal. I would like to see this change being made to free up the OC’s time to focus on new complaints instead of getting bogged down with trying to prove their case at the courts when someone does not like being referred to a leadership tribunal.

  24. Hello there everyone. I was in Goroka at the Bird of Paradise Hotel in March 2007 when Maladina’s Committee came for their consultations during their tour of the Highlands Provinces seeking views about the Ombudsman Commission. I am not sure whether I support the changes mainly because I don’t know enough about the amendments. But I feel that changes are needed because corruption is getting out of hand and the Ombudsman is silent on many issues.

  25. In November 2006 the Ombudsman Committee came to Kwikila to discuss with the people of Central Province about the OC and the proposed changes. I was present for the meeting. The Committee was led by Mr. Nick Kuman a former Member from Simbu. Hon. Moses Maladina was not part of the Committee and was not present. Can he now claim that he consulted us from that meeting. Not all the people of Central agree with Mr. Maladina’s ideas. Secondly if my memory serves me right, the MPs at the meeting seemed to have already made up their mind that the OC was not performing. We should give the new Chief Commissioner a chance to prove himself. Can someone advise me what’s going on.

  26. Kila,

    1. The last Government in 2005 established the Special Parliamentary Committee on the Ombudsman and Hon. Moses Maladina was appointed its Chairman. Nick Kuman was the Deputy Chairman.

    2. In 2006 the Committee was divided into two teams for the consultative meetings due to resource constraints. In November 2006 whilst Mr. Nick Kuman led a team to Kwikila, Mr. Maladina led another to Rabaul and Buka. During the same month both teams then met in Madang at the Divine Word Institute to continue the consultation for the Momase region.

    3. Some verbal submissions made at those meetings were done under oath. However, most meetings were taped and recorded on Hansard and are available to read. Written submissions from a number people and organizations were also made and are available from the Committees Secretariat in Parliament.

    4. When the new Government was formed, Mr. Maladina was reappointed as Chairman of the Special Committee on the Ombudsman. At its first meeting in 2007 the Committee as a resolution adopted all submissions and records of the previous committee in the last Government.

  27. Hi Kila,

    here is one explanation.

    The old expression ‘Throwing the baby out with the bathwater’, refers to the time of Shakespeare’s England where people only had a bath once a year (in mid Summer). Bathing then was then viewed as being potentially hazardous to a person’s health. Everyone in the family would bath in a large tub of water in the middle of the living room. Father would go first and then all the boys after which mother and girls all in age order. By the time the baby got to have a bath, the water was so dirty that it was suggested the baby might end up being throw out with the bathwater.

    In PNG’s legal system, there is very important principle. No one should be declared guilty until the case is proven. In contrast, the French legal system however, the accused has to prove their innocence.

    The current situation concerning the PNG Ombudsman appears to some to be confusing. Some claim that IF the Ombudsman was doing the job his Commission was supposed to be responsible for, there would be no corruption in PNG.

    A corollary of this view is that if there is now corruption in PNG, obviously the Ombudsman’s role needs to be changed. This simplistic argument seems to be gathering a following but is this merely a case of ‘Throwing the baby out with the bathwater?’

    PM Michael Somare himself admits that corruption has become rampant and everyday media reports indicate corruption even at the highest levels has seemingly become accepted. So if the PNG Ombudsman is the sole bulwark to preventing corruption, has that Commission been funded and resourced to the level that it can do the job it was set up to do? It is understood however that the OC has had reductions in funding rather than commensurate increases to handle the problem. These funding reductions have been made by the very people who are now claiming the OC hasn’t done its job and needs changing (i.e. PNG Parliament). So where are those parliamentarians who have voted for an increase over the years in the OC’s funding and resources?

    Before any changes are made to a system that everyone initially thought was a good idea, logically there should be a review. But did the review of the OC ask the right questions? Everyone knows how easily people can skew the answers to any survey by framing the questions in an appropriate way.

    So what are the questions that WEREN’T asked in the review by the Parliament on the OC? Here are few suggestions:

    1. How many of those who want the Ombudsman’s powers changed actually referred instances of corruption to him and were rebuffed? (and are they prepared to publically report these instances?)

    2. How many of those who now want a reduction in the OC powers have been implicated or could be implicated in corruption charges? (e.g. “Let he who is without guilt cast the first stone.”)

    3. How many of those who want to end corruption in PNG are prepared to stand up and report corruption when they see it happening? (Its easy to point the finger without naming them personally but hard to make a stand.)

    In essence, Parliament is trying to change the rules under which the very members now operate. This situation can be summed up very simply.

    If you starve your dog and chastise him, how can you expect him to bark when he sees a thief? So who is the real problem here? The dog or ultimately, its owner? (i.e. The OC or some members of Parliament and their supporters?)

  28. I have just seen the William Kapris interview CD being sold around in POM city and although it is a one persons aversions & allegations, I must say I fear how right minded parliament members and respectable citizens in high places can be so intoxicated into money laundering and corruptions. This is so damaging to PNG’s unity.

    Just remember that in PNG, no one can be a dictator or an autocratic empire, you have to know png has 800 languages; diverse culture and the best thing an MP can do is keep the balance between all these different social structures.

    By the way, Kapris CD is selling like hot cake around POM city. The police & prosecuting agencies are taking like forever to take appropriate actions so let the public be warned!! Exciting stuff…

  29. Post Courier Friday 30th April, 2010

    Bill delay . . .

    By JONATHAN TANNOS

    NON-government organisations yesterday made a breakthrough in getting the chairman of the Parliamentary Committee on the Ombudsman, Moses Maladina, to agree to delay final debate on the controversial Constitutional amendments.

    But Mr Maladina now faces the daunting task of convincing the Government caucus lead by the Leader of Government Business, Paul Tiensten, to allow for it.

    This is in order for them to make supporting changes to the amendments or review the proposed changes to the Organic Law on Duties and Responsibilities of Leadership and the other Constitutional alterations.

    The breakthrough came through an open meeting with leaders of the NGOs led by Transparency International PNG, Community Coalition Against Corruption, the Churches and Women’s Councils plus others led by National Capital District Governor, Powes Parkop.

    In a change of tact Mr Maladina has invited most protesting groups including lawyers, senior citizens and students to sit down with him and go through the changes.

    But he has also made it clear that he would not be withdrawing the bill, as it was already the property of Parliament and any changes would have to be integrated with current amendments on final approval by the government caucus.

    “The last thing I want to do is withdraw it,” he said.
    “It’s in Parliament and I want to make the changes there.”

    Yesterday’s open meeting was the first opportunity for the NGOs to hear from Mr Maladina first hand clarifications over the many misunderstandings and misinformation relating to the amendments.

    For many there it was a relief when Mr Maladina explained each specific amendment when they were given the opportunity to voice their objections on each one.

    On the most controversial one – Section 27(4) of the Constitution – rescinding the directive powers of the Ombudsman Commission, Mr Maladina told them it had already been passed and was only awaiting certification by the Speaker.

    And instead of the expected confrontational approaches to the meeting all parties found themselves being tasked by Mr Maladina to carefully scrutinize their own proposed changes and improvisations to be presented to his committee for consideration.

    “I myself want some more work to be done on the changes,” he said.
    “There’s a lot more work to be done.”

    Mr Maladina said it was the responsibility of the Ombudsman Commission to protect the integrity of leaders “not having a prosecutorial attitude.”
    Mr Maladina gave the working committee representing the NGOs to come up with their changes by Monday next week.

    He gave assurance that there would be debate on the floor after the additional consultations have been held.

  30. Maladina is Lying – Marat (Post Courier)

    Attorney-General says proposed changes more ‘sinister’

    By Simon Eroro

    ATTORNEY-GENERAL and Minister for Justice Dr Allan Marat in an exclusive interview with the Post-Courier yesterday accused the Chairman of the Parliamentary Committee on the Ombudsman Commission, Moses Maladina of lying about the full effect of his proposed changes to the Constitution to restrict powers of the Ombudsman Commisson.

    Dr Marat said he was “totally scared’’ about the misinformation because Mr Maladina was not amending the Act but “adding a new sub-section which would make it difficult for the Ombudsman Commission to prove a case against a leader.

    “I am very, very scared of the changes that Mr Maladina and his committee are pushing to achieve and this is not right,” Dr Marat said.

    He said this was because firstly Notice number 73 to Parliament the proposed changes was about the Constitutional (Amendment) Law and Sub-Section (4) of Section 27 was never a part of what Parliament passed.
    He said although it was true that Sub-Section (3) was amended, what happened was that Sub-Section (5) and (6) were repealed and replaced with a new Sub-Section (5) and (6) which was passed by Parliament.
    “it was not Sub-Section (4) which calls for and gives powers to the Ombudsman Commission either generally or in a particular case to ensure the attainment of the objects of responsibility of office,”

    Dr Marat said this means that Notice No – 73 effectively amended Section 27 (3) and completely repealed sub-section (5) and five (5). He said there is a Notice No – 98 now before Parliament to be dealt with in the coming session which attempts to amend Section 27. “We must be made very clear that this Notice No – 98 is not to replace Sub-Section (4) but to add Sub-Section (4A) which will come after Sub-Section (4). Again, this will totally be a new Sub-Section on Section 27 and as such is not amending Sub-Section (4),” Dr Marat said.

    “I am speaking to you while looking at the documents and Mr Maladina must not mislead this country but tell the truth in what he wants to achieve with the changes he is spear-heading.”

    He said for the purposes of sub-section (4), the standard of proof to be applied in tribunal proceedings is that of proof beyond reasonable doubt – onus is on the prosecution.

    “Proceedings against leadership is not a criminal proceeding but a civil proceeding so the standard of proof is on the balance of probabilities,” Dr Marat said.

    The sub-section (5) which Dr Marat contends is the replacement in paragraph (b) by deleting the full stop after the word “imposed” and inserting “or” and adding the following new paragraph “the person comply with such a directive that is necessary or convenient for attaining the objects of the law.

    Dr Marat said in sub-section (6) it was replaced with: (i) as the result of any proceedings in respect of a charge of misconduct in office, is a bar to proceedings in respect of the same act under other provisions of the Constitution or any other law.

    And (ii) the result of any proceedings under any other provisions opf the Constitution or of any other law, is a bar to proceedings in respect of the same act under this law.

  31. Hi Emmanuel,

    how did today’s protest go and was there any reaction or response in the House Tamberan?

  32. Report from Ilya on today’s demo.

    Thousands protest change to PNG watchdog
    ILYA GRIDNEFF
    May 4, 2010 – 4:24PM

    AAP

    More than 5000 Papua New Guineans have rallied in the capital Port Moresby to protest against legal amendments they say will weaken the country’s anti-corruption watchdog.

    After marching to parliament house, the protesters on Tuesday handed over a petition of 20,000 signatures calling for a stop to moves to restrict the powers of the Ombudsman Commission.

    The protest follows weeks of public debate and outrage over what many fear will be a further erosion of governance in a country ranked by Transparency International as 151st most corrupt out of 182 countries.

    Transparency International PNG director Peter Aitsi said people were angered by scandals and an inquiry into corruption that had not been acted on by the government.

    “There is a growing community concern and anger over unresolved issues before parliament and the breakdown of parliamentary process,” he said.

    “This is about the ombudsman amendment, but also about the people’s growing concerns about widespread corruption.”

    Aitsi said the peaceful gathering was the largest public protest in PNG since early 2000.

    “Maybe it’s too early to say, but there is an awakening in the community,” he said.

    The rally was organised by PNG’s Community Coalition Against Corruption, church groups and student bodies, along with members of opposition political parties.

    Opposition Leader Mekere Morauta told the crowd the planned legislative changes were unnecessary.

    “We as the opposition will be talking to the government. We want to see the prime minister to urge him to withdraw the amendments,” he said.

    The protesters also raised concerns about PNG’s much-hyped $16 billion ExxonMobil liquefied natural gas (LNG) project, touted as the saviour of the resource-rich but development-poor nation.

    “The people are fed up. The same leaders are stealing and nothing happens,” said community activist Noel Anjo, who also addressed the protest.

    “They are missing out, will life improve after LNG? No.”

    © 2010 AAP

    1. Thanks Peter.

      Paul I drove by today to have a peek. Was a bit tied up to join but my younger sister and mother went along to Protest. So was actually quite peaceful and controlled which was suprising considering how angry some of the protesters were.

      The Opposition Leader came out to accept the petition. So we’ll see what happens now.
      Sent from my BlackBerry® smartphone from Digicel Pacific

      1. Thanks mate,

        While this is very important in fighting PNG corruption, it is an equally important time for democracy. The organisers of the demonstration should be congratulated.

        It will be very interesting to see what happens in the Haus Tamberan now.

        What were the local news reports about the demonstration like? Will the people in rural areas become involved and equally energised? Is it enough to get the attention of the majority of politicians so that they might start thinking about the results of their own actions and not just about themselves?

        What yesterday also proves is that PNG can organise a law abiding, peaceful demonstration. Police Commissioner Baki should take note and assist this type of activity. Perhaps he should also take note of how many people want ‘someone’ to actually do something about the recommendations for police investigations from PNG’s judiciary and the PNG Ombudsman.

        Lastly, why was it the Opposition Leader who accepted the petition and not the government? Could it be for once government Ministers and members were a tad apprehensive of being seen?

  33. While the PNG PM and his supporters apparently skulked in their caucus
    meeting, the Opposition Leader and four Morobe politicians accepted the
    petition of 20,000 signatures requesting the withdrawal of the Mandalina
    Amendment.

    According to Opposition Leader Morauta, Parliamentary standing orders
    currently prevent the tabling of this petition as the matter is currently
    before parliament and has been deferred for further consultations.

    However, surely the issue of whether the petition is tabled or not is
    totally irrelevant? That fact is that the petition exists and is a very
    public expression of the will of many PNG people on the matter.

    The large public demonstration and the petition are facts the PNG government
    and Parliament cannot overlook. For anyone to ignore this significant
    milestone in PNG democracy and political history would be very unwise.

    A line has been drawn in the sand and the people who drew it are now
    watching.

  34. I was part of this peaceful protest to present the petition against OC amendment bill but now feel a wasted effort as protocols & procedures are obscuring the the very definition of majority disagreement “protest”.

    I’d rather we take protest up next level, as peaceful thought, like demanding GOV to make acceptance & response. Such things like sit around the tambaran haus day & nite until the outcome we want is achieved.

    Otherwise, we let them cool off and they blur us with shit, which is what NA government is so good at. Legitimate legal & protocal scare tactics…

  35. i hope the bill dose not come up again in the near furure. I a;so came to realise some of the weakness of of the ombudsman commission. why the rise in corruption in the first place. they should do their job. whats the use of it being there if there is not much progress??

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