Thursday, April 16, 2015

LEADERSHIP CODE -VS- CRIMINAL CODE (Papua New Guinea)

By Bryan KRAMER
Peoples Power Movement
Facebook (17:04:2015)

After reading the many comments in relation to our Members of Parliament being referred by Ombudsman Commission to Public Prosecutor on allegations of misconduct in office versus those being charged by Police for criminal offences it seems most are still confused about these two very distinct judicial processes. Therefore I thought it only proper to provide a brief insight to better 
clarify their distinctive differences.

Those who have been following my articles over the past year would already be familiar with the subject matter. However I understand social media in PNG in recent times has exploded with a direct readership of 200,000 and word of mouth reach exceeding 1 million. So it's appropriate to revisit some of the points already covered in the past.

What is the Leadership Code?

Leadership code are laws established by the Constitution (Division 2) governing ethics (moral values) and code of conduct of those who hold leadership positions in the public service or Government.
General responsibilities on ethics and code of conduct are defined by Subsections (1), (2) and (3) under Section 27 of Constitution. Hence why you will always notice when a Leaders is referred by OC on allegations of misconduct in office their press statement will always make reference to Section 27 of Constitution.

To summarise these provisions (laws)

(1) Leaders must never place themselves in a position where they could have a conflict of interest or where they could be compromised in any way.

(2) Leaders must never demean (disrespect) the reputation of the office or position they hold.

(3) Leaders must never allow their integrity to be called into question The integrity of and respect for the government of PNG must be preserved at all times and no act of a leader should diminish or undermine this respect for government.

(4) Leaders must never use their office for personal gain.

(5) They must never engage in any dealings or activity that might be interpreted by the people of PNG benefiting themselves.

(6) They must never let themselves be open to suspicions or seen to be acting suspiciously

Because the code of misconduct under Section 27 of Constitution is very general Parliament also passed more specific provisions (laws) under the "Organic Law on Duties and Responsibilities of Leadership" which include:

1. Annual Statements (s4) -Leaders are required to submit their Annual Statements every after 12 months. Stating the terms of their personal particulars, spouse(s) (wife), children, assets, liabilities, income, accounts, business connections and positions, business transactions and gifts. A leader who fails to submit this annual statement is guilty of misconduct in office.

2. Use of Office for Personal Benefit (s5) - A leader using his official position or power to give himself benefits; or give advantages and favours to his or her family, relatives, friends or associates or allows his name to be used for his benefit or the benefit of any other person - is guilty of misconduct in office.

3. Personal Interest (s6) - A leader who fails to disclose or report to the OC and the appropriate authority, his interests or the interest of an associate including family or relatives, in the matter with which he has to deal with in his official capacity, if he fails to disclose it he is Guilty of Misconduct in Office.

4. Company Directorships (s7) - A Minister, his spouse or children under voting age who become or is nominated a director of a company or foreign company without first seeking approval from OC is Guilty of Misconduct in Office. A Minister fails to give priority to official business over private or personal business is guilty of Misconduct in Office.

5. Shareholdings (s8) - A leader, his spouse or any children under voting age who hold shares or investment in any company and placed in a conflict of interest and without first seeking approval from the OC situation is Guilty of Misconduct in Office.

6. Engagement in Other Paid Employment (s9) - A leader who remains in, or engages in other jobs or work that pays a wage or salary other than his official employment, without obtaining the written approval of the Ombudsman Commission is Guilty of Misconduct in Office.

7. Interest in Contracts (s10) - A leader his spouse or child under voting age or a company which he has controlling interest in can not seek, accept or hold any beneficial interest in any contract of PNG without first obtaining approval from the OC to do so is a Misconduct in Office.

8. Acceptance of Bribes (s11) - A leader or any of his associates, who receives or agrees to receive or attempts to receive any money , property, benefit, or favour of any kind for himself or any other person from any one in return for official favours, is Guilty of Misconduct in Office

9. Acceptance of Loans (s12) -A leader, his spouse or child under voting age who accepts a loan of money from any person, or holds a franchise (to do business under the person’s trade name), or accepts any gifts or other benefit or advantage, from a person or a foreign company is Guilty of Misconduct in Office. The above does not apply to a bank loan, a loan from a Savings & Loan Society.

10. Misappropriation of Funds of PNG (s13) - A leader who intentionally use or agrees to apply any public money to any purpose not intended for or who authorises or agrees to such misappropriation of public funds is guilty of misconduct in office

11. Personal Advantage of Official Information (s14) - A Leader who divulges any confidential information acquired in the course of his official duties or uses any information acquired in his official duties for his own benefit and for the benefit of his associates is guilty of misconduct in office. This does not apply to information which has been officially released by a leader or body having the power to release it for public information.

12. Disclosure of Interest before Debate or Voting (s15) - A Member of a Legislative or Executive body must disclose to that body any direct or indirect beneficial interest in a matter pending before it prior to debating or voting upon the matter.

13. Agents (s16) -Leaders must not act in any manner either by consent or by authority for the benefit of his spouse, relative or associates.

So who does the Leadership Code apply to?

The Leadership Code laws only applies to persons who hold the following leadership or public office positions.

- All Members of Parliament - including Prime Minister & Opposition Leader
- Members of Provincial Government Assembly including Administrators
- Members of Local-Level Governments
- Head of National Government Departments (Department Secretary)
- Constitutional Office holders - Judges, Public Prosecutor, Solicitor, Clerk of Parliament, Auditor General including Members of Public Service Commission
- Members of Ombudsman Commission
- Commissioners of; Police, Defence, CIS and Electoral
- Members of Board of Statutory Bodies including University Councils
- All PNG Ambassadors and High Commissioners including Consular Officials.
- Public Trustee (Public Curator)
- Personal staff of: Governor General, Ministers, Opposition etc.
- Executive officers of Political parties.

If a person does not act in any of the above public office positions then they can't be investigated on charges of misconduct in office.

Who is in charge of enforcing the Leadership Code?

Leadership Code is enforced or supervised by Ombudsman Commission. OC officers are responsible to investigate any complaint filed by any person or initiate their own investigation into any alleged breach of the laws under the leadership code. Example in the Prime Minister matter in relation to the UBS Loan the OC initiated their investigation before referring him to the Public Prosecutor.

How are investigations carried out?

When a complaint of misconduct is registered with the office of OC it will first review the allegations to confirm it is genuine and there is sufficient information to justify an investigation. OC has two divisions one being leadership and other administration matters. A complaint in relation to leadership will first be assessed before making a recommendation for investigation. Final approval must come from Chief Ombudsman by majority vote of the other Ombudsman members (3 in total so two members are sufficient).

Once approved the file is referred back to the Leadership Division and an officer will be assigned to investigate and collect evidence to support the allegations. His investigations are supervised by the Director of Leadership. OC has special legal powers where they can require any person (leader, govt employee or private citizen) to appear before it to give evidence or to produce any document that is relevant to an investigation. This includes correspondence, financial, banking or phone records.

Once an investigating officer has completed their investigation and satisfied they have obtained sufficient evidence to support the allegations of misconduct he/she will prepare a report to Director of Leadership. Director who will review the report and file to decide whether or not there is sufficient evidence. The file will then be referred to OC legal division to provide legal advice reconfirming the same view.

Final approval is then sought from Chief Ombudsman who tables the findings at a Commission meeting. A vote is taken to decide whether or not there is sufficient evidence.

If approved OC will then write to Accused giving him opportunity to respond to the allegations. (Right to be heard) He may either respond in writing or make himself available for interview or just don't respond at all. If they do respond any evidence they give maybe be used against them. In the Prime Minister's referral over the UBS loan it was reported he declined to respond to the allegations.

Any response or evidence submitted by the Accused will be carefully considered by the investigators and legal officers in the OC. If OC is still satisfied Accused has a case to answer to it will then formally refer the matter to the Public Prosecutor to prosecute before a Leadership Tribunal.

So why does the OC write to the Accused to respond to the allegations of misconduct in office?

The law Section 20(3) of Organic Law on Duties on Responsibilities requires that the OC must formally inform the Accused of the allegations against him. This is consistent with principles of natural justice a fundamental right under the Constitution. Justice must not only be fair but seen to be fair. If OC were to refer a person without first giving him the right to be heard over the allegations then he could appeal his referral in the National Court. This was the case in Patrick Pruaitch referral in 2010.

In that matter in 2008 OC investigated Mr. Pruaitch over 18 allegations of misconduct in office. He was given the right to be heard and after considering his response the OC conducted further investigations and then decided to refer him to the Public Prosecutor. Mr. Pruaitch then challenged his referral on the grounds the OC failed to give him the right to be heard in relation to the further investigations against him, the matter has been in Court since.

So why does the OC refer the cases to the Public Prosecutor?

The Public Prosecutor (PP) is a constitutional office established under the Constitution and has sole prosecuting authority and control of offences against any law on behalf of the State (Govt). Further Section 29 of Constitution states that where the OC is satisfied that there is a prima facie case (sufficient evidence) that a person has been guilty of misconduct in office, it shall refer the matter to the Public Prosecutor for prosecution before a Leadership Tribunal. If the Public Prosecutor fails to prosecute the matter within a reasonable period (being four months) or declines to prosecute the OC may prosecute it in his stead.

If the PP reviews the file and confirms there is sufficient evidence he will write to the Chief Justice to appoint a Leadership Tribunal to hear the allegations.

PP has never declined to refer a matter or case referred to it by OC. This is because OC is very thorough and professional in its investigations it also has a 99% success rate. Since it's inception in 1976 the OC has referred 101 leaders.

What is a Leadership Tribunal?

Leadership Tribunal is made up of three members National Court Judge and two senior District Court magistrates). Except in the case of the Prime Minister, where three members must be made up of three Supreme or National Court Judges.

Once appointed the Tribunal will convene to accept the formal charges and OC statement of reasons against Accused. All other persons other than Prime Minister, Chief Justice or Governor General are automatically suspended from office until the final ruling by the Leadership Tribunal.

The Tribunal will then conduct a trial where witnesses will be called and documentary evidence tendered.

Should the Leadership Tribunal find Accused guilty it will then decide whether or not the charges are serious enough to warrant (justify) his dismissal from office or a fine or suspension instead. The intent of the Leadership Code is to protect the office or position. It has no powers to sentence a person found guilty to imprisonment.

If the charges are serious then the LT will certainly dismiss the Accused from office. He will be banned from holding public office for three years.

However where the conduct of the Accused in criminal in nature misappropriation etc it will typically make recommendations that they be investigated for criminal prosecution under the criminal code.

What happens if the Leader resigns?

This has happened in the past where leaders who were investigated by the OC resigned to avoid being prosecuted before the Leadership Tribunal. To avoid the findings of Tribunal being used against them in Criminal prosecutions. If a leader resigns but some years later is elected or appointed to a position subject to the leadership code the OC may continue its investigations or prosecution against him.

In other countries like Australia or New Zealand who's leaders in past have become subject to investigations they will typically resign not necessarily out of respect for the office but more so because they know they are guilty and the evidence against them is overwhelming. Hence no point staying in office. In contrast in PNG our leaders know they may frustrate or delay the process of their prosecution by engaging highly paid lawyers to lock it up in Court or attempt to defeat justice by bribing witnesses to withdraw their evidence weakening the Prosecution's case against them.

In summary Leadership Code are laws on ethical code of conduct and only apply to those who hold specific leadership or public positions in Government. So any conduct by a leader that demeans his office or where he has a conflict of interest whether in his personal or official life may be considered misconduct in office.

The Leadership code is supervised and enforced by the OC who are responsible for investigating any complaints or allegations of misconduct in office against those the code apply. Investigations are conducted by highly professional officers with financial and legal qualifications.

Investigations are subject to vigorous screening process before final decision is made by the OC to refer the case to Public Prosecutor. This makes it impossible for malicious, unjustified or politically motived referrals to be made by the OC.

If you have been investigated and referred by the OC then irrespective what your lawyer advises you, you have something to be worried about. They have an extremely high success rate. If the misconduct charges are not serious then you may only be fined or suspended from office for two to four weeks. Worse case scenario or judgement against you is dismissal from office for a period of 3 years. However if the misconduct offences are also criminal in nature and prescribed in the Criminal Code then you may also face criminal investigation, arrest and charges by Police. If convicted (found guilty) under criminal code you may be sentenced to serve time prison.

Part 2 of this article will cover the Criminal Code..

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Bryan Kramer is lawyer by profession who has been continuously shading light to the vast majority who have little or no knowledge about how laws works in Papua New Guinea and most other commonwealth countries. He is also a runner-up in the 2012 National Elections in Madang Open Electorate in Papua New Guinea.

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