By Vergil Narokobi
The disbanding of the Investigation Task Force Sweep (ITFS) and the subsequent call by the Prime Minister to investigate the conduct of its Chairman Sam Koim (and Hon. Sam Basil), presents the reality of any investigative body and the precarious position it is in when conducting investigations, especially against leaders holding positions of power. It is for this reason that when one looks at investigation bodies like the Ombudsman Commission, one appreciates the independence conferred on it and draw lessons for the future life of the ITFS. Here I try to pint out what kind of independence mechanisms an investigative body should have using the example of the Ombudsman Commission. I raise the question whether ITFS should have been thought out a little bit more carefully and put in place more protective arrangement to secure the results of its investigations when it was first set up. This is because so much time, energy and resources were put into it. Furthermore, it is hoped that this piece may enlighten the readership to meaningfully contribute to debate on what kind of anti-corruption bodies should be put in place as a result of our on-going experience so far.
Firstly ITFS is set up by administrative arrangement. It is not established by law. Three types of laws in PNG are ordinary legislation, an organic law or the Constitution (laws). The difference between these laws are that any changes to them can only be done by Parliament requiring specific majorities. An ordinary legislation requires simple majority whilst for the Constitution and an organic law, a little more. The strongest protection is if it is established under the Constitution. It can only be amended by specific majorities over a specific period of time. If it is an administrative arrangement such as ITFS, it exists at the good pleasure (or whim) of the government of the day. If it was established by law, then it can only be repealed by Parliament, and not by the executive government. Furthermore, even if its is repealed by Parliament, it can be challenged on the basis of its constitutionality in the Supreme Court.This is important. For example Parliament tried to amend the powers of the Ombudsman Commission under the so called Maladina amendments but the Supreme Court refused stating that the amendments were unconstitutional.
Secondly, once it is established by legislation, what kind of mechanisms should the legislation have in place to protect its independence? Taking the example of the Ombudsman Commission, the Constitution states that in the performance of its functions, it should not be subject to the direction and control of any person. The government of the day cannot dictate to it, what matters it should and should not investigate. It appears that this may be the same protection that is available to the Police. In the Philip Bouraga case the court said clearly that the Police Commissioner is not subject to the direction and control of the executive (NEC) in terms of its functions. No such protection is extended to the ITFS because it is an administrative arrangement. What sort of organisation is ITFS and what are the terms of its operations? It is not clear what is the chain of command in the ITFS?This should be made clear right from the start.
Thirdly, the protection offered to the head of the organisation. Again using the example of the Ombudsman Commission, an Ombudsman cannot be removed from office, unless a very specific process is followed. The Ombudsman must be given opportunity to present his/her case, which has to be considered carefully, and if the explanation is not sufficient, referred to the appropriate authority to consider prosecuting before a constitutional office holders tribunal. The referred Ombudsman will only be dismissed after the tribunal finds the Ombudsman guilty and recommends dismissal. It is a lengthy process clearly designed to avoid frivolous and vexatious claims against an Ombudsman as a result of reprisal from its investigations. It is a difficulty that any head of an administrative arrangement faces when they don’t have such protection. It is easy for a person whom it is investigating to lay a complaint and investigate the investigator!
Fourthly, the immunity/privilege conferred on the persons occupying the position. Under the Organic Law on the Ombudsman Commission, an Ombudsman or an officer of the OC is not liable for anything that it does in good faith. It prevents vexatious lawsuits brought against an Ombudsman or an officer for anything it does in the course of duties. Again, since ITFS was an administrative arrangement, it places all those working in that set up in very difficult position. They would have to rely on the general law for the protection of their reputation and investigations.
Fifth, the dismantling of the ITFS pending an investigation. The Constitution prevents Parliament from abolishing the Ombudsman Commission when an investigation is pending. Again this is a special protection offered to the Ombudsman Commission, which is not extended to ITFS as it is not established by the Constitution.
These are important questions that those who had established the ITFS should have thought out carefully before setting it up. It is an administrative arrangement between various bodies such as the Ombudsman Commissions, the Police and the Attorney-General’s Department. Its demise does not mean that its investigations have ended, because it is a body that facilitates other investigative bodies such as the Police and the Ombudsman. But one important function it seems to have played in this scenario, is to suggest that cooperation among investigative bodies is important, but what kind of legislative protective measures should we offer to such bodies like ITFS if we believe that it is doing an important job in stopping corruption? Obviously having some level of independence is important.
Just to clarify before I conclude. The Ombudsman Commission has no power to charge a person subject to its power for a criminal matter. But it is important to bear in mind that the same facts constituting the alleged criminal matter can be considered as misconduct in office under the Leadership Code. The penalties for breach of the Leadership Code is different to breach of the Criminal Code and does not involve imprisonment. Both process can be run at the same time, but the Leadership Code process ends once a person stops being a leader (ie Member of Parliament).