Possible Constitutional impasse in Papua New Guinea

From PAUL OATES

Is there a possible weakness in the Papua New Guinea Parliamentary accountability process?
The Ombudsman has been tasked with investigating (among others), the current Speaker of the House. How can the Ombudsman report to either the PM or the Speaker on his findings and not raise doubts about the investigation's result being released and acted upon? How can the PM or Speaker act on his own case? Where is the separation of powers?
(excerpts from the PNG Constitution in red)

22. Enforcement of the Constitution
22.
The provisions of this Constitution that recognize rights of individuals (including corporations and associations) as well as those that confer powers or impose duties on public authorities, shall not be left without effect because of the lack of supporting, machinery or procedural laws, but the lack shall, as far as practicable, be supplied by the National Court in the light of the National Goals and Directive Principles, and by way of analogy from other laws, general principles of justice and generally-accepted doctrine.

           23.        SANCTIONS.

(1) Where any provision of a Constitutional Law prohibits or restricts an act, or imposes a duty, then unless a Constitutional Law or an Act of the Parliament provides for the enforcement of that provision the National Court may-

(a) impose a sentence of imprisonment for a period not exceeding 10 years or a fine not exceeding K10 000.00; or
(b) in the absence of any other equally effective remedy under the laws of Papua New Guinea, order the making of compensation by a person (including a governmental body) who is in default,

or both, for a breach of the prohibition, restriction or duty, and may make such further order in the circumstances as it thinks proper.

(2) Where a provision of a Constitutional Law prohibits or restricts an act or imposes a duty, the National Court may, if it thinks it proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty, and Subsection (1) applies to a failure to comply with the order as if it were a breach of a provision of this Constitution.

(3) Where the National Court considers it proper to do so, it may include in an order under Subsection (2) an anticipatory order under Subsection (1).


           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.

28. Further Provisions

(1) For the purposes of this Division, an Organic Law-

(a) may give to the Ombudsman Commission or some other authority any powers that are necessary or convenient for attaining the objects of this Division and of the Organic Law; and
(b) shall make provision for the disclosure to the Ombudsman Commission or some other authority of the personal and business incomes and financial affairs of persons to whom this Division applies, and of their families and associates, and in particular of interests in contracts with governmental bodies and of directorships and similar offices held by them (including powers to nominate directors, trustees or agents, or similar officers); and
(c) shall empower the Ombudsman Commission or some other authority to require a person to whom this Division applies to dispose of, or place under the control of the public trustee, any assets or income where this seems to be desirable for attaining the objects of this Division; and
(d) may prescribe specific acts that constitute misconduct in office; and
(e) may create offences (including offences by persons to whom this Division applies and offences by other persons); and
(f) shall provide for the investigation by the Ombudsman Commission or some other authority of cases of alleged or suspected misconduct in office, and confer on the Commission or authority any powers that are necessary or convenient for that purpose; and
(g) shall establish independent tribunals that-

(i) shall investigate and determine any cases of alleged or suspected misconduct in office referred to them in accordance with the Organic Law; and
(ii) are required subject to Subsection (1A), to recommend to the appropriate authority that a person found guilty of misconduct in office be dismissed from office or position; and

(h) may make any other provision that is necessary or convenient for attaining the objects of this Division

(1A) An Organic Law may provide that where the independent tribunal referred to in Subsection (1)(g) finds that-

(a) there was no serious culpability on the part of a person found guilty of misconduct in office; and
(b) public policy and the public good do not require dismissal,

it may recommend to the appropriate authority that some other penalty provided for by law be imposed.

(2) Where an independent tribunal referred to in Subsection (1)(g) makes a recommendation to the appropriate authority in accordance with that paragraph or with Subsection (1A), the appropriate authority shall act in accordance with the recommendation.

(3) For the purposes of Subsections (1)(g), (1A) and (2), "the appropriate authority"-

(a) in relation to-

(i) a person holding an office referred to in Section 26(1)(a), (b), (c) or (d) (application of Division 2); or
(ii) a person holding an elective office that is declared under Section 26(3) to be an office to and in relation to which this Division applies,

means the Head of State; and

(b) in relation to a person holding any other office to which this Division applies-means the appropriate appointing authority.

(4) An Organic Law may provide for the suspension from office of a person to whom this Division applies pending the investigation of any case of alleged or suspected misconduct in office by him.

(5) Proceedings under Subsection (1)(g) are not judicial proceedings but are subject to the principles of natural justice, and-

(a) no such proceedings are a bar to any other proceedings provided for by law; and
(b) no other proceedings provided for by law are a bar to proceedings under that paragraph.



29. PROSECUTION OF MISCONDUCT IN OFFICE.



(1) Where the Ombudsman Commission or other authority referred to in Section 28(1)(f) (further provisions) is satisfied that there is a prima facie case that a person has been guilty of misconduct in office, it shall refer the matter to the Public Prosecutor for prosecution before a tribunal established under Section 28(1)(g) (further provisions).

(2) If the Public Prosecutor fails to prosecute the matter within a reasonable period, the Commission may prosecute it in his stead.



3           0. OTHER AUTHORITY.

Where another authority is prescribed under Section 28 (further provisions) that authority-

(a) shall be composed of a person or persons who are declared under Section 221(1) (definitions) to be a constitutional office-holder; and
(b) is not subject to direction or control by any person or authority.



3          1. DISQUALIFICATIONS ON DISMISSAL.

(1) A person who has been dismissed from office under this Division for misconduct in office is not eligible-

(a) to election to any elective public office; or
(b) for appointment as Head of State or as a nominated member of the Parliament; or
(c) for appointment to a provincial legislature or provincial executive (including the office of head of a provincial executive), or to a local-level government body, for a period of three years after the date of his dismissal.

(2) In the event of doubt as to whether an office or position is an office or position to which Subsection (1) (a), (b) or (c) applies, the decision of the Ombudsman Commission is final.

Under the principle of 'Separation of Powers', the Chief Justice can only hear cases that are put to his Office, not determine what those cases are. The Ombudsman could establish an 'independent tribunal' (28. g.i., ii. above), be set up under these exceptional circumstances, to resolve the apparent impasse and to provide a process that is clearly transparent to the people of PNG.
For example: Why not have the Ombudsman hand his report about the PM, Deputy PM and the Speaker to a bipartisan Parliamentary Committee, possibly chaired by the Governor General? That would provide probity and maintain transparency and conform to Sec 29. (b) above. The Parliamentary Committee could then refer any matter arising from the Ombudsman's report to the National Court, thus maintaining a separation of powers in these exceptional circumstances. If the Public Prosecutor refuses to act, the Commission may act in his stead. (29. (2.) above).
Is there a Constitutional lawyer available who might be able to throw some light on this situation?

So what do we call this decade?

I just realised that the decade has almost ended and there is still not really a name for it. You have the 80s and the 90s. What in the world do you call the years between 2000 – 2010? 00s sounds silly. Or I guess you could also call it the “double-Os,” still ridiculous.

I read that some people are calling it “the aughts” or the “aughties.” Ummm…nice try, but that sounds worse than 00s. Your attempt to be cutesy with it is actually more of a failure than anything else.

Me? I usually call it the 2000s. Simple, truthful, and people can understand what I years I am referring to. However, when you get to the year 2011 and beyond, and you are calling 2000 – 2010 the 2000s, then what do you call the rest of the years?

It is a debate that is not going to alter anyone’s life, but it’s still an interesting one to think about. What do you think we should call this decade?

 

Papua New Guinea Public Service Commission overpayments

From PAUL OATES

"Quis custodiet ipsos! Custodes? (Who is to guard the guards themselves?) Juvenal (63 -130)
I refer to the article below in The National on Tue 29Dec09
If the PNG Public Service Commission is currently under investigation, then all those who have been identified by the Public Accounts Committee should be required to take paid leave until after their investigation is complete. How can the PNG public service have any faith in their Service's leadership if the rot apparently starts from the top?
If there is prima facie evidence that the PS Commissioners may have breached the law, the recipients should not be allowed to continue to act in their role as Commissioners until the matter is resolved. No wonder that there are constant disputes over 'missing' millions of Kina.
Where overpayments are detected there must be immediate action. There are only two possible alternatives:
1. There has been an unintentional mistake by both those paying the out the public monies and those receiving the funds, or
2. There has been intentional theft.
In the first instance, those who have received funds they were not entitled to must demonstrate they didn't know they were being overpaid. They must then pay these public monies back immediately. If necessary, recipients of overpayments must either negotiate with their employer (the PNG government) for pay the overpayment back by instalments on their salary within a very limited time or they go out and get a bank loan like everyone else has to.
The longer they take to pay bank the overpayment, the more they should be charged compound interest on the overpaid funds. Recipients MUST not come to believe they actually own the overpaid money as these funds have virtually been an interest free loan (from the public taxpayers). These actions are essential otherwise it sets a benchmark that others could expect to follow.
In the second instance, it is a matter for the police, public prosecutor and courts. While no one should be declared guilty until proven so in a court,
there might be some possible leniency offered by the court if the recipients paid all overpaid money back immediately as an act of good faith.
Any departure from the above alternatives will give an entirely wrong message to the rest of the PNG public service.

Paul Oates
_________________________________________________

Tue, 29/12/2009
'PSC bosses overpaid by millions'
Source:
By BARNABAS ORERE PONDROS
THE Public Accounts Committee (PAC) has established that commissioners of the Public Service Commission (PSC) and several staff received significant "extra" payments of salary and entitlements running into "millions of kina" and there is sufficient evidence for investigations into the commission.
Government insiders said the figures actually run into "millions of kina", and according to a PAC document ""there is prima facie evidence of possible
breaches of law by Commissioners, officers and staff of the commission sufficient to warrant referral for further investigations".
At this stage, no figures were disclosed because "there is evident confusion as to the true entitlements of Constitutional office holders".
But according to the document, an executive summary of PAC findings, obtained by The National, the PSC "admits the fact of all of the payments,
but challenges the amount of those over payments".
Despite the challenge and confusion the PAC "finds that commissioners of the Public Service Commission accepted large overpayments with no query or demur".
The PAC also found that there were significant failures of management, command control, accountability and record keeping within the PSC.
The PAC considered this a reckless indifference and said commissioners "should be relieved of their positions" and the matters be urgently
addressed by the Government.
PAC investigations into the PSC stem from a report from the Auditor-General dating back to Dec 28, 2004, and several amended reports.
Although the PAC criticised the quality of the Auditor-General's original report, it endorsed its findings and related amendments.
On that, the PAC resolved that its findings be presented to Parliament as per the Public Finances (Management) Act and Permanent Committees Act.
For a start, the PAC advocates for an urgent review into the receipts of salary and allowances of all commissioners and other Constitutional office
holders.
It also resolved that it would approve and direct the findings of the Auditor-General's office report to the Ombudsman, the Public Prosecutor, the
Solicitor General, the Police and the Department of Personnel Management.
Furthermore, that the salaries and remuneration commission urgently consider the content of the Auditor-General's report and clarify the true
entitlements of Constitutional office holders in order that overpayments and other abuses may be identified and stopped.
The Government source said such issues of overpayment of salaries and entitlements are a protracted issue and a chronic problem in the public
service that needs to addressed.
"And this is uncalled for, especially from the premiere public service body in Papua New Guinea," the source said, adding "for how long can we allow
such abuse of funds to continue when the majority of people in rural areas, and taxpayers are deprived of essential services".
PAC member Sam Basil, when commenting on these findings, stressed that the Government must provide relevant support to ensure recommendations presented are implemented and achieve results.

Papua New Guinea must prepare for Mexico climate change meet

By REG RENAGI

 

So much for all the media hype about the big deal we have to have to save our planet.  The recent UN climate summit in Copenhagen failed to meet the world’s expectations.  All the hard work by 192 countries to reach some sort of agreement in Denmark came to nothing.  It’s back to the drawing board. 

 

Papua New Guinea wasted a lot of time and money going to Copenhagen when nobody got to hear what we have to say.  Now we wait for the same meeting next year in Mexico. Before Mexico, the media hype will start all over again by scientists and certain rich nations world leaders grandstanding to everyone about the ‘new big deal of all deals’ this time to again save our world.  But isn’t that what they said last time?  Do we believe them again this time?  Well maybe; maybe not.

Next year, PNG leaders (yes, the same politicians) will again talk up a storm to convince its still illiterate 6 million people about how great our new REDD paper will be for the Mexico meet.  In Mexico, we are going to tell the big polluters what we didn’t tell them in Denmark.  But why didn’t we do it last time when we are supposed to have spent some K8 million, and for what?  Are we going to spend another K8 million or is in dollars or pesos this time?  But what’s in it for us (PNG)? Nothing, nada, zilch, ‘gauta lasi’.

Copenhagen failed us all.  There wasn’t any so-called Treaty, Agreement or Accord.  The next big thing may be the ‘Mexico Memorandum’.  We hope Climate Change Mexico will come up with something more legally binding this time to commit the rich nations.  These are the big climate polluters like the US, China and other industrialized countries who must all agree to cut their carbon emission levels, and accepted by all conference participants.

PNG must seriously analyze what Copenhagen’s failure really means and be better prepared for Mexico.  In Copenhagen, everyone failed to agree what definite future action to take to save our world.  The conference agreed to all procrastinate until next year.  In Mexico, we will see more repeat performances in platitudes and pontification by rich nations, and acquiescence by poor nations.  They seem to have little choice but heel to the arrogance of polluting countries. 

This failed conference should tell PNG a lot about the world political order today.  The global human race club has two types of membership.  They form within two sub-clubs: the rich and poor men’s clubs.  But in reality the fate of the world is exclusively in the hands of the rich man’s club (G20 group).  They think they should always call the shots because they have the financial resources, high technology, well organized government and affluent society, etc.  A member of the poor man’s club like PNG and other small poor nations, unfortunately have no real say at all (or do we?).  Maybe one day. 

Copenhagen did not have any true champions to push its set agenda.  Even the US proved a major disappointment to everyone.  President Obama gave a very ordinary address that did not excite anyone at all.  Obama even got accused of not taking the expected leadership role to get big recalcitrant polluters like China to come to the fold.  Some say his Copenhagen address has made him no different to his predecessor. 

However, if there was ever any deal of some kind, then one can say it was between the US and China, India, South Africa, and Brazil which established a kind of a negotiating bloc.  The four developing nations asked for and got the following: no compulsory limits on carbon emissions, no emissions reduction unless Western nations pay for them, no international monitoring of emission reductions if not paid for by the West and lastly, not to use global warming as an excuse to impose protectionist policy of trade restrictions on those who do not reduce carbon emissions.

What can PNG learn from this?  First of all, be better prepared for Mexico.  Second, cut travelling delegates down to six with no unnecessary brief-case carriers.  Third, we start now by drafting a good bipartisan paper to present next year.  Fourth, canvas all stake-holder’s viewpoints.  Get community feedback from everyone (villager, rural, urban, the whole country) that may be affected in future by climate change.  Last but not the least, we can right then plan out exactly what we can actually do now within our own means and resources.  This is important before we even think about asking rich nations for a ‘hand-out’. 

PNG must have its own national “Climate Change Action Plan’ now.  Many things can be done by ourselves without waiting to go overseas and attend expensive ‘talk-fests’ at the behest of the rich men’s club.  We only show that we are really helpless without the West propping us up every time.

Papua New Guinea must reform its financial markets

By REG RENAGI

 

Papua New Guinea needs to have a vibrant financial market to boost its steadily growing economy. In addition, we must also explore the offshore option. Having an offshore stabilization fund as recently mooted by the Treasury may not be a flawed logic as many people may think. There are certain benefits involved.
However, it is important to be vigilant. We must be more aware of the offshore market conditions so we do not rush in without first assessing the market.
The government must do its own due diligence. Its financial advisors must not simply believe everything they are told by the overseas financial institutions until they have done their own investigation.
They must first investigate, analyze and confirm that the source (Banks, finance companies, etc) giving us the offshore option is also applying the same effective strategies themselves, and that the information given is truly genuine, and from reliable financial advice service sources.
There has been a lot of talk in recent years about the benefits of placing funds (whether public, private or individual investors) in offshore funds (companies, trusts and investments). But let’s always be on guard that while some of this information may be correct, a lot of it can also be incorrect.
A common perception prevails that it is expensive, and may not be viable (especially for the average person).
So let us look at some reasons why an offshore funds investing can be an alternative investment choice for PNG.
Firstly, if we structure the offshore company correctly (this is vitally important) we can gain substantial tax benefits.
Second, we can access investments that we may not be able to invest here due to a narrow-base market.
Third, an offshore bank or company also suffers none of the restrictions we may currently have. It can freely invest in these investments that can yield from 25 per cent to several 100 per cent a year.
Presently there may be existing constraints in government regulations regarding foreign prospectuses to anyone here, but can be sent to foreign companies.
What is more, people set up an offshore financial structure (company) to manage investment funds for asset protection, privacy and confidentiality. In as far as international tax planning goes; an offshore funds investment has the advantageous use of foreign jurisdictions and their tax rules for reduction of tax liability.
There is also nothing wrong in keeping the money in our Central Bank, but there may be other inherent technical constraints that may take time to review.
In general, offshore investing is also a good strategy to diversify our country’s investment range. So apart from investing in PNG, it can also be a safe and good investment practice for PNG to have its surplus money in good international funds management jurisdiction.
Here our money is reinvested in several other high-yielding financial instruments to maximize upon good high investment rate of returns many International financial institutions and investment banks offer to its international clients.
On the other hand, while it is not that difficult to set up a Foreign Investment Fund as some people have recently suggested with surplus proceeds from our LNG in PNG, diversifying in an offshore investment opportunity is good investment practice. This way, we are simply not putting all our eggs in the one investment basket.
There are several prudent hedging strategies the government can use. Once done, we can then use creative financing to borrow offshore and loan to smaller Pacific Island countries earning revenue within an onshore financial market.
The power of OPM (Other People’s Money) allows the required flexibility to diversify our financial market and hedge against risks of providing offshore loans to other Pacific states. Such an onshore facility allows us to relend at lower but competitive interests rates.
OPM is a preferred option as it is not good investment strategy to use one’s own money, but the banks to leverage favourable interest rates.
Another good way to have a vibrant and diversified financial market is to create a futures market base in PNG.
We can now set up our own commodities futures and options exchange as opposed to the present passive local bourse (PomSox). Once set up, we then gradually and systematically build up a diversified range of investment opportunities onshore. The futures exchange can annually add a variety of new financial instruments for daily trading activity.
A futures exchange allows public (institutional, banks/finance companies, private and individual small-time) investors to do investment trading onshore than overseas. We can create wealth within our country now by trading futures contracts on common commodities like coffee, cocoa, copra, oil palm, crude oil, sugar, orange juice, pork bellies, currencies, financial indexes, to mention just a few.
The exchange can further dual list other commodities commonly traded on overseas futures (and options) exchanges. This will result in a greatly enhanced trading flexibility, increased volume, lower risk hedging factor and high leverage returns for investors; among others.
The government must also consider lowering onshore banking interest rates to around 2.5 and 3 per cent so the majority of our people are fully involved in growing our economy.
More onshore business opportunities can be realized by our people if the government is prepared now by being more innovative and create a vibrant financial market.
The country is ready for other alternative investment choices for our people. This must now be PNG’s immediate wealth creation strategy within the next five years as part of our government’s national strategic wealth plan for Papua New Guineans.
We can no longer wait and watch only foreigners acquire wealth at our expense.

Port Moresby's new fountain

This is Port Moresby's new fountain at the suburb of Gerehu, which was opened on Christmas night by National Capital District Governor Powes Parkop.

It is a major attraction, especially at night, with different coloured lights.

Wobblies and Roosters

From PAUL OATES in Queensland, Australia

We've just had some very welcome rain and although no run off yet, the grass has started to grow. There's a patch of grass just outside the backdoor that seems irresistible to the wobblies and kangaroosters. Mrs Wobbly is busy keeping an eye on her spouse while Mummy roo has a Joey that is about to outgrow her favourite refuge. The blue crested pigeons are hanging around for some stale biscuits.