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Melanesian Law Journal |
Ombudsmen and Leadership Codes in Papua New Guinea and Fiji: Keeping Government Accountable in a Rapidly Changing World
Alice de Jonge[*]
Preamble
Mencius went to see King Hui of Liang. The king said: “You have not considered a thousand li too far to come, and must therefore have something of profit to offer my kingdom?” Mencius replied: “Why must you speak of profit? What I have to offer is humanity and righteousness, nothing more. If a king says, ‘What will profit my kingdom?’, the high officials will say, ‘What will profit our families?’, and the lower officials and commoners will say, ‘What will profit ourselves?’. Superiors and inferiors will try to seize profit one from another, and the state will be endangered ... Let Your Majesty speak only of humanity and righteousness. Why must you speak of profit?”
Mencius, Book II
A. Introduction
“...We looked at many constitutions in the world ... We noted that constitutions are essentially political documents expressing political and economic philosophies prevailing at the time .... The constitutions were about power, use of power, abuse of power, misuse of power, and control of power. We had no misgivings about what constitutions do. Essentially, power is acquired through the barrel of the gun, or acquired through a ‘gentlemen’s agreement’...”[1]
The problem of power, how to divide it and how to control it, is a problem faced by constitutional drafters everywhere. The problem is commonly solved by providing for a balancing of powers between separate power-holding institutions in national constitutions. And like many of their contemporaries elsewhere, constitutional drafters in Commonwealth South Pacific territories almost “invariably adopted the traditional Western technique of dividing the total governmental power into the celebrated tripartite system of legislative, executive and judicial powers”.[2]
The reasons for the adoption of the Westminster System in each of these countries have been examined elsewhere.[3] More important here are the various modifications made to the traditional Westminster relationships of power, and in particular the various supplementary mechanisms and devices which were adopted for controlling the exercise of executive power.[4] One such institution is the Ombudsman. After briefly outlining the constitutional context within which the Ombudsman resides, the remainder of this paper examines the position and operation of the Ombudsman in relation to another feature found in some Pacific Islands Constitutions – the constitutional Leadership Code. The experience in Papua New Guinea – where the Ombudsman Commission has since 1975 found that most of its time is absorbed in the job of monitoring the nation’s constitutional Leadership Code - is examined first. The paper then looks at Fiji, a country which does not currently possess the advantage of a Leadership Code, but where the 1996 Constitution Review Commission (CRC) has recently recommended the inclusion in the Constitution of a new Integrity Code outlining standards of conduct for the country’s senior officers and leaders.
Having recommended the establishment of a national Integrity Code, the CRC found it more difficult to answer the question of whether or not it was appropriate for a traditionally non-political institution such as the Ombudsman to become involved in the supervision of leadership standards – something the CRC expressed grave reservations about. On the one hand, the CRC was aware of the pressing need to deal with the political nepotism, maladministration and corruption in government in a way that was both economically and politically feasible. Given the political and economic constraints surrounding other alternatives, enlarging the functions of the existing Ombudsman’s office may well be the most acceptable and practical means of doing so. On the other hand, the CRC wished to preserve the non-political and non-controversial role of the Ombudsman, and to preserve its ability to work closely with the executive in addressing complaints and righting administrative wrongs. Particularly in light of the importance of Fiji’s inheritance-based chiefly system in national politics, and in light of the racial tensions which also tend to characterise the nation’s political system, it could be argued that any institution entrusted with monitoring an Integrity Code will inevitably find itself fulfilling a highly controversial role.
The other major question discussed in this paper relates to historical, cultural and political forces operating within Fijian society today. Compared to its Melanesian neighbours, Fiji bears far more resemblance to Polynesian societies, such as Tonga and the Samoas, where hereditary chiefly hierarchies still wield a great deal of influence and power. The Fijian national Chiefly Council, the Bose Levu Vakaturaga exercises a pre-eminent role in Fijian affairs, and retains a great deal of respect. The importance of chiefship was recognised by the CRC, which expressly recommended that the role and powers of the Bose Levu Vakaturaga be enhanced by establishing it as a constitutional institution. Less easy to answer was the particular question of whether or not members of Fiji’s traditional chiefly institutions should become subject to a constitutional Integrity Code.
B. The Pacific-Islands Ombudsman: Constitutional Role and Position
It has long been asserted that the traditional Westminster separation of powers does not of itself guarantee adequate protection of citizens from abuses of power by members of the executive. Effective parliamentary scrutiny of the executive is commonly hindered by such things as executive dominance in the legislature,[5] and by the growing size and complexity of decisions and actions state servants take daily.[6] Even the courts have on occasion been subject to undue influence, or overly sympathetic to the political inclination of the executive of the day. Moreover, the courts, like the Parliament, tend to lack investigating authority, and to be limited to determining only the criminal or civil matters brought before them, despite developments in administrative laws and regulatory standards.
The need for control of the executive is, however, but one side of the equation. There is an equally important need to allow the executive enough freedom of action to enable it to deliver the social goods that people expect from it. The island nation constitutions discussed here adopt what Deklin describes as a “composite approach” in dealing with this dilemma. The aim of such an approach is to surround the powers of government by a number of control devices to achieve an all-over adequacy of control. The Ombudsman[7] thus stands as one amongst a variety of institutional means for supplementing the traditional principles of parliamentary and judicial control over the executive.[8] In Melanesia, it stands alongside offices exercising complementary functions which include the office of the Public Service Commission;[9] the Judicial Service Commission;[10] the Electoral Commission;[11] and the Auditor-General.[12] The essence of these offices is that, in their role as “watchdogs” for the people, they are all subject to the constitutional requirement, expressed in various formulas, that they are to remain free from outside control, and functionally independent of both the executive and Parliament. The degree of strength, power and effectiveness possessed by the Ombudsman in a particular constitutional jurisdiction has two aspects to it - aspects which could possibly best be described as the “shield” of the Ombudsman on the one hand, and on the other hand, its “sword”.
The shield of the Ombudsman lies primarily in its special constitutional status.[13] It is this special status which, in both Papua New Guinea and Fiji, makes the Ombudsman very difficult for government members to attack or abolish. To abolish the Ombudsman Commission in Papua New Guinea, for example, would require support from a three-quarters absolute majority vote of all members of Parliament eligible to vote (ie not just of those present and voting). Likewise, in Fiji, legislation designed to repeal, suspend, modify or derogate from the provisions of Chapter X of the Constitution (which mandates the establishment of the Ombudsman), would require the support of at least two thirds of all members of each house of Parliament.[14]
In Papua New Guinea, the Organic Law on the Ombudsman Commission (OLOC) also has a higher legal status than other laws, and is subordinate only to the Constitution itself.[15] In event of inconsistency between an Organic Law and any other law, the Organic Law must prevail.[16] Section 17 of the Constitution further ensures that any attempt to repeal or alter an Organic Law cannot succeed unless it is supported by at least an absolute majority of votes in Parliament. Finally, Sch 1.17 of the Constitution establishes a residual safeguard, and provides that the repeal of any provision of the Constitution or an Organic Law does not prevent the Ombudsman Commission (or the Leadership Tribunal) from investigating any act to which the repealed provisions were relevant.
No similar protection exists for the Ombudsman Act of Fiji (Cap 3), which can be altered or repealed by Parliament in the same manner as any other law. While the 1990 Constitution does provide for entrenchment of several pieces of important legislation, the Ombudsman Act in not amongst these. A very similar effect is achieved, however, simply as a result of the fact, unlike in Papua New Guinea, most of the detail concerning the appointment, powers, functions and procedure of the Fiji Ombudsman are contained within the Constitution itself, rather than in the Act.
The Ombudsman is also protected from external influences in the performance of his or her duties. In Papua New Guinea, s 217 of the Constitution provides that the Ombudsman Commission:
“... is not subject to direction or control by any person or authority ... in the performance of its functions under Section
219”,
and that
“The proceedings of the Commission are not subject to review in any way, except by the Supreme Court or the National Court on the ground that it has exceeded its jurisdiction.”
In Fiji, a similar provision is found in s 139 of the Constitution, which provides that:
“In the discharge of his functions, the Ombudsman shall not be subject to the direction or control of any other person or authority and no proceedings of the Ombudsman shall be called in question in any court of law.”[17]
The wording of this provision serves to place the Ombudsman in a different position to other constitutional office-holders in Fiji (eg the Auditor-General), who are effectively made subject to judicial review in the exercise of their constitutional functions by s 158.[18] Moreover, while in Papua New Guinea the Ombudsman Commission is made subject to judicial review if it exceeds its jurisdiction,[19] the Fiji Ombudsman “has exclusive power to define his or her own jurisdiction”.[20] The Constitution Review Commission has recommended that this continue to be the case, and expressed the view that the power to define his or her own jurisdiction was “essential to the independent exercise of the Ombudsman’s functions”.[21]
Constitutional independence from political and judicial controls may be of little use to an Ombudsman in the absence of adequate resources to operate. Economic independence is also needed. In Papua New Guinea, s 225 of the Constitution attempts to achieve this by imposing a duty on the national government, governmental bodies and public office-holders to ensure that staff and facilities are provided to facilitate the proper and convenient performance of the functions of all constitutional office-holders. The PNG Ombudsman Commission is certainly not excluded from normal budgetary processes, but if it is squeezed for funds, either deliberately or through neglect, it can institute proceedings under s 225. In an era of rapidly changing (and deteriorating) economic circumstances throughout the region, there is greater likelihood that budgetary measures will be used (and there is some feeling they are being used) to discriminate against selected constitutional bodies such as the Ombudsman Commission,[22] and it is precisely for this reason that s 225 may well continue to increase in importance.
A similar economic safeguard is not found in the Fiji Constitution. The Ombudsman Act (Cap 3) simply provides in s 7 that:
“The administrative expenses of the office of the Ombudsman including such expenses and allowances as are authorised by the provisions of this Act[23] shall, to such amounts as are sanctioned by parliament, be paid out of the Consolidated Fund.” (emphasis added)
The resources available to the Ombudsman of Fiji are thus solely dependent upon the discretion of Parliament in its annual budgetary appropriations. As the Constitution Review Commission recognised, the government’s power to allocate resources is a potential means of thwarting the effectiveness of Independent Constitutional Office-holders such as the Ombudsman. The CRC considered a number of submissions which proposed that the Constitution should contain a general provision guaranteeing all independent constitutional office-holders control over levels of staff and other resources so that they are able to perform their constitutional functions with effective independence.[24]
After considering this question “very carefully”, however, the CRC came to the conclusion that “a constitutional provision to that effect would not be practical”. It reasoned that:
“At any one time there are always competing priorities for the allocation of financial resources between the various activities and departments of the Government. There is also a similar competition for skilled human resources. These are matters of policy. In our view, the Government must have the ability, subject to Parliamentary approval, to decide how limited national resources are to be allocated.
Any constitutional guarantee in this area would necessarily have to be in broad terms. In many countries which have such general constitutional provisions, the Courts have continuously been drawn into the area of policy and politics by independent officers seeking more and better resources. This is not desirable.
In these circumstances we believe that the existing constitutional state that these officers are not to be ‘subject to direction and control’ provides some protection at least from the strategic withdrawal of resources. The Privy Council in an appeal from Fiji indicated that in cases where resources are denied or are withdrawn by the Government with the clear purpose of undermining independence, the Courts would not be powerless to intervene.”[25]
The CRC’s Report does not make clear whether the members of the Commission were aware of the provisions of s 225 of the Papua New Guinea Constitution. Nor does it clarify in which countries it is alleged that the “Courts have continuously been drawn into the area of policy and politics by independent officers seeking more and better resources”. As the experience of the recently established Ombudsman office in Vanuatu has shown, political controversy can arise just as easily when the Ombudsman is forced to operate under constrained financial circumstances without the politically neutral protection of a legal guarantee of adequate resources.[26]
A guarantee of independence for the Ombudsman’s office as an institution is of little use if its individual members are open to political interference or manipulation. Both in Fiji and Papua New Guinea, therefore, the Constitution militates against purely political appointments to the position of Ombudsman by conferring the power of appointment on the Head of State (the Governor-General in Papua New Guinea and the President in Fiji), who must act in accordance with advice in making that appointment. In Papua New Guinea the advice must come from a special ad hoc body called the Ombudsman Appointments Committee, the composition of which is such that there is little likelihood of political collusion amongst its members in making appointments.[27] In Fiji, the President takes advice from the Prime Minister, in consultation with the Leader of the Opposition and “such other persons ... as appear to the President ... to be leaders of parties in the House of Representatives”.[28]
In both Papua New Guinea and Fiji, individual Ombudsmen are also ensured both security of tenure and security of personal remuneration throughout the term of their appointment. In Papua New Guinea, a Chief Ombudsman or Ombudsman, once appointed for the appropriate term (a renewable term of six years),[29] cannot be dismissed until the expiry of that term,[30] except in the case of inability to perform the functions of the office, or for misconduct (including breach of the Leadership Code) in office. Moreover, removal from office, under the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office Holders,[31] can only be effected in accordance with strictly regulated conditions and procedures.[32] A similar situation prevails in Fiji,[33] where the need to ensure that an Ombudsman has sufficient security of both tenure and remuneration to enable him or her to exercise the functions independently was recently emphasised by the CRC.[34]
On the question of security of remuneration for the Ombudsman, the CRC noted that:
“[t]he power to increase, reduce or withhold remuneration levels of independent officeholder gives the person or authority holding that power the ability to influence the officeholder. This might undermine the ability of the officer to act independently.”[35]
In order to prevent such a situation from occurring, and to ensure that salaries and allowances of officeholders are set in an open accountable way, the Fijian Constitution provides that salaries and allowances payable to independent officeholders must be prescribed by Act of Parliament, and cannot be altered to the disadvantage of an incumbent Ombudsman after his or her appointment. Once provided for, these salaries are “charged on the Consolidated Fund”, which means that unlike other expenditure, payment of these salaries does not require any further approval by Parliament.[36] In Papua New Guinea, similar safeguards are found in constitutional provisions designed to safeguard the level of salary and other conditions of employment of the Chief Ombudsman and the two Deputy Ombudsmen.[37]
In Papua New Guinea, the Ombudsman provisions in the Constitution and the OLOC have combined to make that institution amongst the most powerful in the world. Its sword, in other words, is forged with the strongest of metals. First, s 219 of the Constitution vests the Ombudsman Commission with all the traditional powers and functions of an Ombudsman. It provides that the Commission’s role is to:
“(a) investigate, on its own initiative or complaint by a person affected, any conduct on the part of any governmental body or member of such body, in cases where the conduct is or may be wrong taking into account amongst other things, the National Goals and Directive Principles, the Basic Rights and the Basic Social Obligations; and
(b) investigate any defects in any law or administrative practice appearing from any such investigation; and
(c) investigate, either on its own initiative or on complaint by a person affected, any case of an alleged or suspected discriminatory practice within the meaning of a law prohibiting such practices ...”
Section 218 of the Constitution then provides the basis for a broad, purposive interpretation of these provisions. It means that the Ombudsman Commission may carry out its investigative functions whenever necessary, inter alia to ensure that “all governmental bodies are responsive to the needs and aspirations of the People”, and to “eliminate unfairness and discrimination by them”.
The nature and operation of the Ombudsman’s complaints jurisdiction in Papua New Guinea has been extensively discussed elsewhere, and further discussion is not the aim of the present paper. Suffice here to note the wide scope of operation made available to the office in that country compared to the more restrictive wording of the corresponding provision in the Fiji Constitution. Section 135(1) of the Fijian Constitution narrows the jurisdiction for the exercise of its powers considerably by ensuring that the Ombudsman may only investigate actions that are “taken ... in the exercise of administrative functions”, and only if:
“(a) a complaint is made ... alleging that a person or body of persons has suffered injustice in consequence of that action;
(b) he is invited to do so by any Minister or any member of the House of Representatives or the Senate; or
(c) he considers it desirable to do so of his own motion.”
The first point is that for a complaint to be investigated by the Fiji Ombudsman, it must normally be made by “a person aggrieved”. An exception to this rule only applies for cases where the aggrieved person is dead, or cannot “for any reason” act for himself or herself. All of this has obvious implications for the ability of the Ombudsman to carry out any additional functions under a possible future Integrity Code in the Fijian Constitution, an issue to which we now turn.
C. Leadership Codes
1. The Papua New Guinea Experience: Traditional Wantok Culture and the Politics of Modern Development
In Papua New Guinea, the establishment of a Constitutional Leadership Code was given the highest priority by the Constitutional Planning Committee (CPC). The CPC emphasised that in order for Papua New Guinea to realise its national goals and objectives, it was necessary to ensure that leaders would not be in a position where their private interests conflicted with their public duties.
In making its recommendation that the Ombudsman be vested with the function of policing the Leadership Code, the CPC stressed the importance of this role, as well as the difficulty and the heavy responsibility which it saw the task as entailing. It was primarily for this reason that the CPC recommended that the Ombudsman be established as a three-person Commission, rather than (as in most countries which have an Ombudsman) as an office consisting of a single person only. The CPC felt that a group of three persons would be in a better position to cope with the pressure of work and discussions with Ministers and senior government officers in regard to potentially delicate matters.[38] As a result, Papua New Guinea now has an Ombudsman Commission which is separated into two divisions, a Complaints Division and a Leadership Division. The Complaints Division receives complaints made against departments and individual public servants in the manner of a traditional ombudsman, while the Leadership Division has primary responsibility for investigating and reporting on alleged breaches of the Leadership Code.
The CPC was very aware that all persons of power and influence in government decision-making are potential victims of the “human frailties” which lead to abuses of power for personal gain. Closeness to power almost inevitably means exposure to bribery and corruption,[39] particularly in the Pacific Islands context where cultural influences can make it very difficult for those who have risen to “bigman” status to resist the pressures, demands and temptations of office. The CPC therefore recommended a very broad scope of coverage for its proposed Leadership Code:
“Our notion of a ‘leader’ is not confined to Ministers, the Speaker, the Leader of the Opposition and other members of the National Parliament, since they are not the only people who hold official positions of significant power, authority or influence in our country. Senior public servants, senior Police and Defence Force officers, constitutional office-holders (including judges and magistrates), senior officers of statutory bodies and boards, government nominated directors and general managers of corporations, members of provincial assemblies and senior officers employed by provincial governments, senior staff of Ministers and Opposition leaders, members of the Advisory Committee on Citizenship Matters, and presidents, chairmen and mayors of local bodies exercising governmental functions (eg local government councils and associations such as the Warakarai na Gunan and Greater Toma ‘Council’), senior administrative officers of these bodies, academic and senior administrative staff of tertiary institutions, office-holders of registered industrial organizations, ambassadors, high commissioners and senior diplomatic officers, and office-holders at the national level of registered political parties - all of these people, we believe, should be regarded as leaders for the purposes of this Chapter.”[40]
While the final coverage of the Leadership Code was drafted essentially along the lines recommended by the CPC, some gaps have appeared. For example, lower magistrates are not subject to the Code, nor, initially, were members of Provincial Assemblies. This gap in the legislation was only partly closed by 1995 reforms to the Organic Law on Provincial and Local Level Governments.[41] These reforms created almost 300 new local-level governments, the members of which are now covered by the national Leadership Code.[42] As Sir Charles Maino noted at the time, the reforms not only boosted the power of a handful of national members of Parliament, they also served to make the Ombudsman responsible for keeping a check on another 5,340 politicians without a corresponding increase in resources.
In this regard, the increasingly onerous workload of the Ombudsman in enforcing the Leadership Code has now become a constraint on its ability to carry out its functions effectively. As Amankwah and Omar have noted:
“It appears that in its dual function of ensuring administrative justice and enforcing the Leadership Code, to keep the political system free of vices, the latter task has taken more time and resources. It is not suggested that enforcing the Code is any less important than ensuring administrative justice. What is important to ponder over is the question whether the onerous responsibility of ensuring the integrity of political and other leaders is a task that the Ombudsman Commission can carry out realistically.”[43]
To help reduce the national Ombudsman Commission’s heavy workload, separate leadership codes and enforcement institutions (ombudsman or other) could be established at the provincial or local government level. This was tried in 1985 in New Ireland, where a provincial Leadership Act was passed by the provincial assembly. The dismal failure of the attempt, however, indicates that this is unlikely to be easily achieved on any significant scale.[44]
A further gap in the coverage of the Leadership Code relates to office-holders in Papua New Guinea’s various political parties. Section 26 of the Constitution expressly includes within the coverage of the Code all “executive officers of registered political parties”. The continued failure of the national government to make any provision for registration of political parties has, however, effectively rendered this part of the constitutional coverage a nullity.[45]
Section 27 of the Papua New Guinea Constitution places any person who falls within the definition of “leader” under an express duty:
“... to conduct himself in such a way, both in his public or official life and in 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 interest 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, or confidence in, the integrity of Government in Papua New Guinea.”
The Organic Law on the Duties and Responsibilities of Leaders (OLDRL) supplements this through its broad definition of the potential conflict of interest situations which leaders must avoid. Forbidden interests include not only interests held directly by the leader personally, but also interests held “indirectly” through his or her close associate, spouse or child under voting age.[46] In the case of Ministers, the Organic Law prevents any Minister, or spouse or child under voting age of a Minister, from either becoming or nominating a director of any company or foreign enterprise.[47] Section 16 then extends the standards of conduct to which leaders are subject to catch cases where an act that would constitute misconduct in office, though not performed by the leader in person, is done:
By setting behavioural standards in the private and family, as well as the public lives of leaders, the Papua New Guinea Leadership Code extends the notion of “accountability” much further than the traditional form of that notion in a Westminster context.[48] This was largely the CPC’s way of trying to ensure the integrity of leaders within the total context of Papua New Guinea’s particular cultural and political circumstances, in which the more insidious forms of corruption such as nepotism, advantaging party colleagues and favours to friends in private business have tended to be more prevalent than elsewhere.[49]
The CPC also recognised the need to deal with “the particular matter of gifts to leaders”.[50] The matter of gifts is now dealt with in s 11 of the OLDRL, which provides that a leader:
“who, or any of whose associates, corruptly asks for, receives or obtains, or agrees or attempts to receive or obtain, any property, benefit or favour of any kind for himself or any other person in consideration of his actions as a public official being influenced in any manner, or on account of his having acted as a public official in any manner (whether generally or in a particular case) is guilty of misconduct in office.”
What this provision recognises is that bribery can take many subtle forms, such as apparent generosity in offers of trips overseas, expensive dinners, free services such as the use of cars, and so on. And it is these more subtle forms of undue influence in public administration which have become a particular problem in modern times.
The puzzle in modern times thus remains why, despite the prominent constitutional status and broadly-worded nature of its national Leadership Code, Papua New Guinea remains saddled with crime, bribery and corruption amongst its leaders.[51] In this regard, it has been argued that the lack of well-established or defined political parties in Papua New Guinea leads to political bargaining and a greater tendency for pay-offs to be given in return for political support.[52] As Lawrence Kalinoe has noted, political parties in Papua New Guinea have:
“... by and large evolved around personalities ... [which] has resulted in an underdeveloped party system and has caused a lot of instability in the executive arm of government. ... This instability has resulted in the poor delivery and implementation of policies through lack of continuity and consistency as governments have been changing nearly every two years.
One period of particular concern in politics generally is the one-week period after a general election leading up to the formation of a new government. During this period of “horse trading” the amount of money that changes hands and the deals the political parties and their leaders do are in many instances not always in the best interest of the country and its people.”[53]
Yash Ghai, on the other hand, argues that “there is little conclusive evidence” to support the argument that strong government is either necessary or conducive to good management and economic development. To the contrary, turnover in governments is necessary to temper “the arrogance of power that comes with long tenure of office”, while “coalition building” can assist in maintaining consensus.[54] The essence of the problem of corruption in office cannot be explained, it seems, simply by reference to the degree of stability in government, or the level of development of political parties.
Other factors more significant in impeding the development of ethical leadership are related to the pervasive influence of the “wantok system” in Papua New Guinea, and to the interaction between conflicting sources of power in society and politics. On the one hand, there is traditional authority, centred around the wantok group, the village and the clan. While there was usually a chief recognised as the nominal ruler in a village, there were typically also other “bigmen” who had equal or similar status.[55] Unlike in Fiji, no royal or noble lineages developed in Papua New Guinea, and paramount chiefs were a rarity. Instead, there was a generally stable balance of power between wantok groups based on kastom, intermarriage and the possession of identical weaponry.[56]
Often in conflict with these traditional forces of authority are the host of new sources of power which modernisation has brought. Throughout the region, new routes to power for those seeking “bigman” status have increased steadily throughout the twentieth century. These began with the availability of positions in the public service to educated locals, and later expanded to include positions in the judiciary, diplomatic positions, political positions, positions in the church, the professions, and, most recently, managerial and directorship positions in large corporate enterprises. Positions in provincial and local government structures have also provided an expanding source of opportunities for securing bigman status.
As Colin Richardson has noted,
“The common thread running through all these additional routes to bigman status ... is gaining preferred access to an attractive resource base external to one’s own wantok group.”[57]
The problem is, however, that this growth in available sources of power and wealth has too often been combined with the persistence of traditional practices, such as
The result of this combination has often been to promote other practices which in a modern, westernised context can only be viewed as nepotism, favouritism and outright corruption.
At the national level, the electoral system is based on regional constituencies, and the need to maintain local regional support has tended to hinder the ability of government Ministers to act in the national rather than the narrow sectional interests of a local constituency or group. The wantok system also means that people can be appointed to senior public service positions for reasons related more to clan lineage or political patronage than to merit or qualification.[60] Along with deficiencies in the number of trained and educated people willing to become involved in politics, this has meant that a limited supply of talent tends to be constantly recycled. Politicians such as Mr. Ted Diro (the former Deputy Prime Minister who resigned from office in 1992 after a leadership tribunal found him guilty of 81 charges of misconduct in public office), continue to re-emerge in political life.[61] As several commentators have noted, “Papua New Guineans have become highly cynical about politicians in general. But they can be very forgiving of individuals”,[62] particularly when cynicism and contempt for parliamentarians is “mingled with the frank expectation that if the member is from your tribe or clan he is obliged to share his ‘wealth’ with you”.[63]
The pervasive influence of wantok connections now extends to the international level as well.[64] Colin Richardson provides a vivid description of the way this has occurred:
“Suppose you head up a foreign logging company seeking [a government] licence to cut 56,000 cume of round logs each year on kastom land. At one million United States dollars per 7,000 cume exported to Japan, Korea or Taiwan, that should fetch $8 million per annum ... Your first step is to find a [local] partner and give him 20 per cent equity in the venture to get your proposal through the Foreign Investment Board. But it can’t be any local person; he must be a bigman (preferably the biggest) from the family, clan or wantok group having the strongest claim to the kastom land you need. If he won’t cooperate, you go for his rival, the next most powerful bigman. If no-one from that lineage takes your bait, you hand the 20 per cent equity to the bigman in charge of whichever family, clan or wantok group has the next strongest claim to the coupe you seek to log. This one definitely will cooperate, since your support may help him win something his wantoks have desired for scores or even hundreds of years.
Being an important bigman your little investment will - ideally - walk you effortlessly through the [necessary] approvals processes ... This will, of course, require further investments at each stage ...
If all else fails, your captive bigman can always foment a land dispute, with prospects for a favourable settlement in the Land Courts. If the court case is inconclusive or drags on too long, it’s possible one or other government might intervene on your side in the Provincial or even the National interest.”[65]
The CPC was aware of this problem:
“We believe that experience both here and in other countries shows that involvement of leaders with foreign controlled corporations including the giant multinational corporations, can lead to much corruption. These companies and other enterprises are in a position to offer tempting gifts and other favours, apparently with no strings attached, but in reality with the object of compromising the leader’s own position, so that when negotiation or other dealings between the enterprise and the level of government at which the particular leader is working take place, that leader will not be able to take an objective stand on behalf of his people. The same danger exists if the leader has shares or some other beneficial interest in the foreign enterprise.”[66]
The CPC’s Report therefore recommended that leaders be “firmly restricted in their dealings with foreign controlled enterprises”, and the Leadership Code now ensures that leaders are prohibited from holding any shares or other investment (eg partnerships) in any foreign enterprise.[67] But despite the stringent provisions of the Leadership Code, and even despite the presence of an active Ombudsman Commission and a vocal media, the cases show that the CPC’s fears continue to be realised.[68]
The other main problem in modern times remains the continued failure to enact the legislative reforms necessary to deal with new forms of corruption in Papua New Guinea’s modernising economy. Take, for example, Papua New Guinea’s antiquated corruption laws. Despite frequent calls for reforms to the Criminal Code to remedy deficiencies in the law of corruption as it presently stands,[69] no action has been taken. One chief difficulty with the law is that:
“... it must be proved that the payment of money was related to a specific official act done or omitted by the public official. Our modern society is becoming too subtle and sophisticated however, for such laws to be effective. A gift for example can be made with apparently no strings attached, as insurance against the day when the leader may be called upon to deal with the interests of the donor. Common sense tells us that it is a rare individual who gives something of value without expecting something in return. Indeed, in our own culture the acceptance of a gift traditionally implies an obligation to return an even bigger gift back to the contributor. As the present law stands, however, it is exceedingly difficult to prove that the gift was a bribe. Thus while the Leadership Code prohibits the Leader from accepting the gifts, there is nothing to stop people from trying to tempt our leaders.”[70]
The Public Finances (Management) Act 1986 is another potentially effective, but in practice toothless, weapon for attacking maladministration and misconduct in office. Along with a number of other administrative laws, it remains badly in need of reform.[71]
Other legislative reforms are needed to establish effective investigative mechanisms for tracing large-scale economic crime crossing national borders. Such cases commonly involve foreign currencies, foreign operators and complex transactions carried out through numerous account names, both real and fictitious, local and overseas. On the one hand, the Papua New Guinea Ombudsman exercises extensive local investigatory powers. Local financial institutions within Papua New Guinea have little privacy legislation to hide behind when details of suspect transactions are sought, and have generally been cooperative.[72] On the other hand, the Ombudsman Commission continues to be disadvantaged in carrying out its investigations by the fact that in Papua New Guinea there is:
“no restrictive practices legislation and no corporate affairs commission. The banks and financial institutions are under no special reporting obligations concerning unusual or suspect transactions.
In fact, the negligence of the banks and their reckless disregard for the source and destination of public money has too often been the catalyst for economic crime.”[73]
Where large scale economic crime and corruption occurs on an international scale, it can bring the economy of a small island nation to the brink of collapse. The late 1990’s scam involving bank guarantees given by the government of Vanuatu is one such case.[74] In Fiji, the late 1990’s have seen allegations surrounding the recent collapse of the National Bank of Fiji (NBF), and an ensuing decision by the government to rescue the bank by injecting US$15 million, an amount equal to 10% of the nation’s GDP. The leaking of the secret Aidney-Dickson Report on the NBF, and the publishing of the names of those who have doubtful debts with the bank in late 1995, revealed the involvement of a number of members of the ruling Soqosoqo ni Vakavulewa ni Taukei /General Voters Party coalition. There have also been allegations aired concerning the political nature of appointments made to the Bank’s Board of Directors and other senior positions.[75]
2. A New Leadership Code for Fiji: Aims, Objectives and the Cultural Context
Originally of Scandinavian origin,[76] the idea that an institution such an Ombudsman could be beneficial was first mooted in Fiji by the Hon Josua Rabukawaqa in 1965.[77] The matter was raised again more fruitfully when, on the eve of Independence (24 July 1989), the Fiji Times ran an editorial on the need for an Ombudsman to protect citizens’ rights in the face of the growing size and complexity of government bureaucracy.
More recently, the Constitution Review Commission (CRC) in Fiji has recommended the inclusion of a new Integrity Code in the nation’s Constitution. What was particularly important for the CRC in making this recommendation was the role that such codes of conduct can play in helping to promote the trust and confidence of the public in government representatives and office-holders. Noting that “[e]ffective democratic governments are built on the trust and confidence of the people”, the CRC felt that the existing Fijian situation, “in which some standards of ministerial behaviour are contained in rules issued by the Prime Minister and others in conventions”, was not satisfactory.[78] This was because:
“When ethical standards are enforceable largely by the Prime Minister, there is less public accountability and more room for public suspicion and speculation. When the suspicion and speculation is unfounded, this may unfairly undermine confidence in the Government and consequently its ability to govern. A constitutional or statutory code has the advantage of certainty and publicity.”[79]
Related to this is the equally strong emphasis in the CRC’s report on the importance of promoting social harmony and cohesion:
“... a code ... reminds leaders and the public of the minimum ethical standards which are expected of these officers. A code also expresses the common ethical values, standards and expectations of the people. As such, it has an important symbolic purpose.”[80]
The Commission was, however, extremely wary of recommending that the Constitution should vest responsibility for enforcing the proposed new Integrity Code in an expanded Ombudsman’s office – whether in the form of a three-person Commission (as in Papua New Guinea) or a single office-holder (as in Vanuatu). It doubted whether the Ombudsman was the most appropriate state institution to handle questions of probity of political, traditional and other leaders in Fiji. In a context where political, racial and social tensions are often volatile, it was felt that vesting the Ombudsman with expanded Integrity Code functions might have the potential for drawing the office into sensitive and controversial issues more appropriately resolved through public debate and discussion.[81] Without pre-empting the possibility of an Integrity Code role for the Ombudsman in the future, the CRC urged that a full study of the experience of other countries should first be carried out. It further proposed that the mechanisms for monitoring, enforcing and investigating offences against its proposed Integrity Code be provided for in an Act of Parliament, rather than in the Constitution.[82]
The CRC also seems to have been concerned to preserve the essentially non-controversial approach of the Fiji Ombudsman’s office which, ever since Fiji’s first Ombudsman (Sir Moti Tikaram) set the precedent in this regard, has tended to distance itself from politics. This approach stands in stark contrast to the more politicised nature of the Ombudsman’s Leadership Code functions in Papua New Guinea and Vanuatu. But it is an approach that may be difficult, if not impossible, to preserve were the Fiji Ombudsman to be endowed with Leadership/ Integrity Code functions commensurate with those of its Pacific neighbours. Alternatively, the risk might be that the office became subject to criticism for weakness and ineffectiveness if it was asked to take up the job of policing an Integrity Code and still remain reluctant to become involved in controversial investigations.
On the question of identifying which public institutions and office-holders should be made subject to the proposed new Integrity Code, the CRC recommended that those subject to the Code should include:
“the President, the Vice-President, all Ministers, all members of Parliament, all constitutional office holders and such other persons as may be prescribed by Act”.
The constitutional office holders whom the Commission felt should be included here were
“all persons in the state services ... whose offices are established by the Constitution [and] all persons appointed to commissions established by the Constitution”.[83]
In regard to other state servants, and members and employees of statutory and local government bodies, the CRC felt that existing provisions for discipline or removal from office were satisfactory. There was no need to make them subject to the general constitutional code.
One very interesting question still to be resolved in Fiji is the extent to which traditional chiefs, and in particular members of the Bose Levu Vakaturaga (BLV), should be made subject to a constitutional integrity code. The CRC does not expressly deal with this question in its Report, and almost appears to have deliberately wanted to leave the issue open. For there is no doubt that the issue is an extremely controversial one in the context of a racially divided society with a strong chiefly inheritance. This was expressly recognised by the CRC which emphasised the pre-eminent position of traditional chiefs and the BLV in Fiji’s national life and politics. It saw the BLV as having an important role in promoting “not only the well-being of indigenous Fijians, but also that of the nation as a whole”.
Unlike Papua New Guinea, where chiefly authority and power tends to be far more localised and dispersed, and more likely to be centred around personalities than based on lineage or descent, the system in Fiji is essentially hereditary, and centred around the recognition of hierarchical leadership relations within and between groups:
“Beyond the level of the single yavusa and the single village, traditional Fijian leadership must be seen in terms of relations of superordination and subordination among groups ...
The significance of these arrangements today is that if political decisions or statements of policy affecting the whole of the Fijian people are made by the high chief of Bau, or by him with the high chief of Rewa, or by them with one or more of the Tovata, such decisions or statements will probably be supported by the whole of the Fijian people, because of a legitimacy based on the traditional political structure.”[84]
In order more fully to recognise and promote this role, the CRC recommended that the chiefly BLV should be expressly recognised in the Constitution, and should be established as an independent constitutional body.[85] What is relevant here is that the CRC also recommended that all constitutional office-holders and constitutional bodies should be subject to its proposed integrity code. This suggests that the most likely way, and possibly the most culturally and politically acceptable way, for members of the BLV to be made subject to a constitutional code of conduct would be for the BLV itself to become an independent constitutional institution.[86]
There appears no reason in principle why members of the BLV should not be made subject to the standards established by a constitutional Integrity Code. At the same time, however, there may be good reasons, similar to those put forward by the CRC in relation to members of the judiciary, why it would not be in the national interests of Fiji for individual chiefs or members of the BLV to be allowed to be the subject of public comment in the media or in parliamentary debate. As with the judiciary,[87] it may therefore prove more acceptable to leave the establishment of standards of conduct for members of the BLV until these can be provided for in a more detailed Act of Parliament.
The Constitution Review Commission also emphasised the need to remain sensitive to the specific historical and cultural circumstances of Fiji’s chiefly society when defining those conflict of interest situations which should be avoided by leaders:
“What may constitute an abuse of office or a conflict in one culture may not be the same in another. Rather than being prohibited outright, traditional relationships, values, norms and expectations often need to be reconciled with the powers, resources and responsibilities of modern government in a sensitive and practical way.
Although it is generally agreed that Ministers, members of Parliament and state servants should always avoid conflicts of interest and should never let private interests take precedence over the public interest, the matter is not clear-cut. Some conflicts of interest are unavoidable. A person’s personal interests as a member of a particular social group, whether described by age, gender, occupation, marital status, ethnicity, area of residence or even sporting or social associations, are unavoidable and generally recognised. Indeed, members of Parliament are often legitimately called upon to articulate or protect the interests of such groups. Thus, in addition to prohibiting certain kinds of behaviour and prescribing procedures and rules designed to prevent situations where a conflict of interest may exist or appear to exist, codes of conduct may also prescribe ways to resolve conflicts where these are unavoidable.”[88]
Noting the difficulty of including the necessary detail for achieving this in general constitutional provisions, the Commission’s Report then recommends that the Constitution should require Parliament to provide by Act for more detailed Integrity Code provisions to implement the standards contained in the Constitution.[89] This is similar to the situation which prevails in Papua New Guinea, and has the advantage of allowing a greater degree of flexibility, for example in dealing with different types of conflict of interest situations, and in providing for different penalties, ranging from removal from office to lesser penalties such as fines and reprimands, according to the relative seriousness of an offence.
The CRC’s proposed new Integrity Code would, if implemented, represent a significant departure from the current status quo in making both Ministers and individual constitutional officeholders subject to an enforceable set of standards.[90] While constitutional officeholders (including the President) are currently subject to provisions enabling their removal from office for “serious misconduct”, the proposed Integrity Code would significantly extend the grounds upon which removal can take place. It would also extend to cover conflict of interest situations and other conduct falling outside the current criminal-law offences of corruption or abuse of office. It would even extend to cover conflict of interest situations arising from indirect interests in business ventures held by individual leaders in their private capacity, for example through close family members or friends.[91] Unlike the Papua New Guinea Leadership Code, however, it would not set standards for private behaviour with no immediate relationship to the performance of public duties. The CRC felt that the main purpose of a code of conduct for Fiji’s leaders should be, “to promote the public integrity of those who govern and to maintain public confidence in them” (emphasis added), and noted that:
“The term ‘conflict of interest’ when applied to important government officials describes situations in which a person’s public duties and private interests conflict, or would have the appearance of, or potential to, conflict. Codes may therefore set standards for both public conduct as well as private behaviour which may be related to the exercise of public duties. Very few codes set standards for private behaviour with no immediate relationship to the exercise of public power.”[92]
It is this more limited notion of accountability which is most likely to form the context for the political acceptability of any future Integrity Code in Fiji. The political constraints on the future parameters of such a Code arise partly from the combined effects of the country’s electoral system and local party politics. Under the 1990 Constitution, an exclusively communal voting system was put into place for a newly expanded 70-member House of Representatives. The 37 reserved seats for Fijians guarantees them an overall majority in the House. Indo-Fijians have only 27 seats, general voters hold five seats, and Rotumans (formerly treated as part of the Fijian community) have one.
Even with the benefit of the disproportionate representation of Fijians under the 1990 Constitution, no Fijian party has been able to govern without the support of independent members and members of at least one other party.[93] Moreover, in the continued absence of united Fijian support for a single party, the election of a government which is not predominantly Fijian remains a possibility. Small wonder then that successful election campaigning so often depends on promising or delivering a benefit or advantage to the particular constituency or community, whether or not this might be in the interests of the nation as a whole.[94]
The CRC recognised that government Ministers should act in the national rather than narrow sectional interests of some particular ethnic group or constituency. As Dr Wadan Narsey has noted, however, the CRC’s rejection of the Proportional Representation (List) system maintains this weakness. For even under the Alternative Vote system recommended by the CRC, if a party is assured of victory in a constituency, minority votes and interests can be totally ignored, and parliamentarians can remain devoted to narrow sectional interests.[95]
As in Papua New Guinea, one of the problems in this area is the lack of talent available to the government. There is a need to ensure that government can draw upon talent from all major political parties, and not just from vulnerable minority parties more amenable to manipulation. The dominance of one party, the Soqosoqo ni Vakavuewa ni Taukei, in Fiji’s current political climate is not conducive to good government. In the words of Dr Narsey,
“No amount of Cabinet re-shuffling of the same ‘hand of cards’ is going to change the cards themselves (as Fiji as seen recently). ... The recent Government mismanagement disasters have cost the nation more than $300 million. ... [Those] who oppose political change must ask themselves whether indigenous Fijians in the country would not be better off, had better management by Government been able to save even half of that ...”
D. Conclusion
Throughout the South Pacific, small island states have been “rocked by [g]overnment scandal after scandal, overwhelming examples of mismanagement and abuse of public funds”.[96] In Papua New Guinea, enormous amounts of public money continue to be wasted as tender laws are ignored and politics intervenes. In Fiji, the National Bank of Fiji debacle “hangs over the head of the people like a huge black cloud”.[97] Other public institutions like the Housing Authority, Fiji Development Bank, Pacific Fishing Company and Native Land Trust Board have also been exposed for bad management.[98]
As modern institutions have continued to collide with traditional authority structures,[99] the region has also witnessed the development of two major types of political leadership: one closely associated with customary leadership, and the other with modern institutions and associations (local councils, churches, trade unions etc). The erosive effects of access to new and competing sources of power have affected both of these groups. As Powles has noted, the tendency is for members of traditional groups to seek independence and authority through modern, alternative sources of power, while traditional leaders, “whether in an endeavour to restore authority, or simply to pursue ambitions for greater power”, can attempt to exploit an ability to command traditional authority in order to influence executive or political decision-making. The effect of all this is to undermine the reciprocal basis of traditional relationships which once existed.
Particularly when the destabilising effects of rapid change, economic development and financial globalisation are taken into account, it does seem somewhat naive to believe that the social values and relationships of traditional society can be, or even should be, preserved. In the final analysis, the costs of failing to hit hard at poor management and outright corruption are far too great. Arguments about the sanctity of chiefship should not be allowed to deny the inherent ability of traditional societies to draw upon the best aspects of the past in the process of change, while leaving the rest behind. One way of achieving this is to preserve the status of the Council of Chiefs by allowing it to take up an enhanced role in the Fijian constitutional and political system, while at the same time making sure that, along with other governmental institutions, its members are seen to abide by the standards established in a national Integrity Code. Doing both of these things would both appease local sensitivities, and help to preserve the level of public respect currently reserved for the chiefly BLV.
[*] Lecturer, Department of Business Law and Taxation, Monash University, Victoria, Australia. The author wishes to acknowledge the contributions of Professor Guy Powles, Law Faculty, Monash University and the Rev Dr Douglas Fullerton, former Minister of the Uniting Church in Fiji, Member, Board of Education of Fiji and Secretary of Education for the Uniting Church in Fiji - both of whom were extremely generous in sharing their knowledge and experience relating to matters Pacific.
[1] Mr. Bernard Narokobi MP, speaking in 1992 about his country’s experience in the “struggle to write a Constitution” during the lead up to 1975: Bernard Narakobi, “Experiences in Constitutional Development in Post-Independence Papua New Guinea”, address to the 1992 Constitutional Conference held in Darwin, as published in R Gray, D Lea and S Roberts (eds), Constitutional Change in the 1990s (1994), p 37.
[2] T Deklin, “The Legal Control of the Executive in Papua New Guinea”, in P Sack (ed), Pacific Constitutions (Canberra 1982), p 173. See also Y Ghai, “The Relationship Between the Executive and the Legislature: Some Aspects of the System of Government in Melanesia”, in P Sack (ed) Pacific Constitutions (Canberra 1982), p 207.
[3] Y Ghai, n 2 above, at p 207; and see also T Deklin, above n 2.
[4] Y Ghai, above n 2, p 214.
[5] In the case of Papua New Guinea, Professors Tordoff and Watts of the PNG Constitutional Planning Committee expressed the view of many when they observed that “... in our experience of political systems in Asia, Africa and the Carribean, we have not come across an administrative system so highly centralized and dominated by its bureaucracy: T Deklin, above n 2, pp 173-174, citing PNG Constitutional Planning Committee, Final Report (Port Moresby 1974), Vol 1, p 10/1.
[6] Fiji Constitutional Review Commission, Towards a United Future: Report of the Fiji Constitution Review Commission 1996 (Parliamentary Paper No 34 of 1996), p 504 (hereafter cited as Fiji CRC Report (1996)).
[7] Chapter 9, Part 2 Vanuatu Constitution; ss 217-220 in the PNG Constitution; Chapter IX in the 1970 Fijian Constitution; and Chapter X in the 1990 Fiji Constitution.
[8] Other mechanisms include provisions setting out qualifications and disqualifications of office for members of Parliament and/or the executive (see eg ss 42 and 55(2) of the 1990 Fiji Constitution; see also Fiji CRC Report (1996), above n 6, Chapter 10 at pp 347-49, Recommendation 305); and provisions providing for a system of parliamentary and/or executive committees.
[9] See eg s 58, Constitution of the Republic of Vanuatu; ss 190-194 in the PNG Constitution; s 104 in the 1970 Fiji Constitution; and s 126 in the 1990 Fiji Constitution.
[10] Called the Judicial and Legal Services Commission in Fiji. See s 46 Vanuatu Constitution; s 183, PNG Constitution; s 101 in the 1970 Fiji Constitution; and s 123 in the 1990 Fiji Constitution.
[11] Section 126 in the PNG Constitution; s 42 in the 1970 Fiji Constitution; and ss 51 and 53 in the 1990 Fiji Constitution.
[12] See s 23 in the Vanuatu Constitution; ss 213-214 in the PNG Constitution; s 126 in the 1970 Fiji Constitution; and s 148 in the 1990 Fiji Constitution.
[13] See s 217 of the PNG Constitution; s 61 of the Constitution of Vanuatu; and s 134 of the 1990 Fijian Constitution.
[14] See s 77(3). See also Chapter 14 of the Constitution of the Republic of Vanuatu 1980.
[15] See s 9 of the PNG Constitution.
[16] PNG Constitution, s 11(1).
[17] Section 139(2) further provides that:
“In determining whether to initiate, continue or discontinue an investigation under s 135 of this Constitution the Ombudsman shall act in accordance with his own discretion; and any question whether a complaint is duly made for the purposes of that section shall be determined by the Ombudsman.”
[18] Constitution of Fiji, s 158.
[19] See further J Goldring, The Constitution of Papua New Guinea (Law Book Co 1978), Ch 8 at pp 61-64.
[20] Note also that s 113(1), which defines the “original jurisdiction of the High Court in constitutional questions”, is expressly made “subject to the provisions of” s 139(1). And see 1990 Fiji Constitution, s 139(2). See also n 28 below. For discussion see Fiji CRC Report (1996), n 6 above, para 15.50, p 514.
[21] Fiji CRC Report (1996), n 6 above, para 15.94, p 524.
[22] Saturday Independent (2 August 1996), citing Chief Ombudsman Pentanus claim that “a ‘deliberate strategy’ existed on the part of successive Papua New Guinea governments to squeeze the Ombudsman Commission of badly needed funds under the guise of belt-tightening”.
[23] Note also s 6 of the Act which allows the Ombudsman, “in his discretion [to] pay to any person by whom a complaint has been made or to any person who attends or furnishes information for the purposes of an investigation, sums in respect of expenses properly incurred or by way of allowance or compensation for loss of time, in accordance with such scales and subject to such conditions as may be prescribed”. (emphasis added)
[24] Fiji CRC Report (1996), n 6 above, para 15.191, p 550.
[25] Fiji CRC Report (1996), n 6 above, paras 15.192-194, p 550.
[26] When appointed to the office of Ombudsman in July 1994, Marie-Noelle Ferrieux-Patterson discovered that apart from her appointment, “nothing else, quite literally nothing else, existed that was required for [the] ... post to function properly”. As a result, she was forced to spend most of her first few years of office in a largely unsuccessful struggle to obtain some of the necessary resources: First Annual Report 1995 to Parliament by the Ombudsman of the Republic of Vanuatu (1995), p 6.
[27] The Ombudsman Appointments Committee consists of the Prime Minister and the Leader of the Opposition, together with the Chief Justice, the Chairman of the Permanent Parliamentary Committee on Appointments and the Chairman of the Public Services Commission: s 217(2), PNG Constitution.
[28] 1990 Fiji Constitution, s 134(2). For further discussion see Fiji CRC Report (1996), n 6 above, para 15.155, p 544; and see paras 15.116-117, p 529.
[29] Or three years if the appointee is not a citizen of Papua New Guinea: see Organic Law on the Ombudsman Commission, s 5.
[30] Section 223(5) of the PNG Constitution - the office of a constitutional office-holder cannot be abolished while there is a substantive holder of that office.
[31] See especially s 7 of the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office Holders, which details the grounds for removal from office.
[32] Two sets of procedures for removal are laid down in the Organic Law. The first is by prosecution for misconduct in office under the Leadership Code. The second requires a decision by the Ombudsman Appointments Committee to refer the question of removal to a Constitutional Office-holders Rights Tribunal appointed by the Chief Justice (Part III).
[33] Section 134(6) and s 130 of the 1990 Constitution.
[34]For discussion, see Fiji CRC Report (1996), above n 6, para 15.178, p 548.
[35] Fiji CRC Report (1996), above n 6, para 15.186, p 549.
[36] See section 146 of the 1990 Fiji Constitution; and Fiji CRC Report (1996), n 6 above, paras 15.186-15.189.
[37] See PNG Constitution ss 217 and 223.
[38] B Brunton and D Colquhoun-Kerr, The Annotated Constitution of Papua New Guinea (Port Moresby 1984), p 448, citing PNG Constitutional Planning Committee, Final Report (Port Moresby 1974), Vol 1, Ch 11, p 5, para 42.
[39] Constitutional Reference No 1 of 1978 (s 18) [1978] PNGLR 460 at 463.
[40] The width of this definition, and the extent of the Committee’s concern to include as many office holders as possible within the embrace of a constitutional Leadership Code is partly due to the fact that the PNG Constitution was being prepared during the early 1970s, at a time when a significant number of incidents of corruption, both in Papua New Guinea and abroad, were being disclosed: see PNG Constitutional Planning Committee, Report 1974: Draft Narrative, Chapter 3, especially paras 2, 15, 17 and 29. See also Second Interim Report of the Constitutional Planning Committee (November 1973), Chapter 2 at 2/7-2/8, and interim recommendation 6.
[41] M-L O’Callaghan, “Provincial shake-up brings payout for MPs and raises doubts”, The Australian (15 September 1995); and S Dorney, “Ombudsman’s job ‘impossible’ under proposed PNG reforms”, Radio Australia (18 June 1995).
[42] M-L O’Callaghan, n 41 above.
[43] H Amankwah and K Omar, “Buttressing Constitutional Protection of Fundamental Rights in Developing Nations: The Ombudsman Commission of Papua New Guinea - A New Hybrid”, (1990) 18 Melanesian Law Journal 74, p 98.
[44] R Orr, “Code of Conduct for Provincial Leaders - A Note on the New Ireland Leadership Bill”, (1991) Melanesian Law Journal [Special Issue], p 187.
[45] This failure has continued despite the fact that the Constitution, in s 129, mandates the passing of a law to protect the integrity of election candidates and political parties. See further Ombudsman Commission of Papua New Guinea, Eight Annual Report (Port Moresby 31 December 1983), pp 62-63.
[46] See for example s 10 and s 8 of the Organic Law on the Duties and Responsibilities of Leadership.
[47] See s 7. This section also, however, allows the Ombudsman to grant permission for a Minister to hold a directorship solely as nominee of the State, in a family company, or in an Incorporated Land Group or Business Group.
[48] But note, contra, the care taken by the Leadership Tribunal in Re Sigulogo [1988-89] PNGLR 384 at 405, to emphasise that it was judging the defendant “on his public life, not on the quality of his private life” in reaching its decision.
[49] Pinder, “Politicians must be accountable through the media”, The Independent (23 February 1996).
[50] PNG Constitutional Planning Committee, Report 1974: Draft Narrative, Ch 3, para 15.
[51] R Callick, “A country ripe for the picking”, Financial Review (23 December 1992). See also R Callick, “Aust maverick’s grab for PNG”, Financial Review (24 December 1992); R Callick, “A Tale of Two Deals”, Financial Review (30 November 1995); Pinder, above n 49.
[52] For discussion of the political party system in Papua New Guinea and how it affects the relationship between the Legislature and the Executive branches of government, see Y Ghai, “Systems of Government II”, in Y Ghai (ed), Law Government and Politics in the Pacific Island States (Institute of Pacific Studies, USP, Suva 1988), pp 76-105.
[53] Kalinoe, a participant at the Constitutional Review Conference held in Port Moresby: The Independent (1 March 1996).
[54] Y Ghai, n 52 above, pp 76, 98.
[55] C Richardson, “Logging the Solomon Islands rainforests: Wantok system versus ecosystem”, (1996) 41 Australian Rationalist, pp 33-36.
[56] C Richardson, n 55 above. See also W Warry, Chauve Politics: Changing patterns of leadership in the PNG Highlands (Canberra 1987); and RJ May (ed), Micronationalist Movements in Papua New Guinea (Canberra 1982).
[57] C Richardson, n 55 above, pp 33, 35.
[58] C Richardson, n 55 above, pp 33, 35.
[59] Ombudmsan Commission of Papua New Guinea, above n 45, pp 64-65.
[60] M-L O’Callaghan, “Growing Pains”, The Australian (15 September 1995). See also interview with Vanuatu Ombudswoman Marie-Noelle Ferrieux-Patterson, published in (1996) 66 Pacific Islands Monthly No 10 (October), p 42.
[61] H Joku, “Diro intends to make a comeback”, The Independent (1 November 1996).
[62] “Corruption endemic”, Financial Review (24 December 1992).
[63] S Dorney, “Pidgen Parliament”, The Australian (15 September 1995).
[64] As Vanuatu Ombudswoman Marie-Noelle Ferrieux-Patterson has noted, “Originally it [the wantok system] was only members from the same island (wantok means “same talk, same language”), but it is extending.”: P Decloitre, “Interview: Ombudswoman not surprised by attacks”, (1996) 66 Pacific Islands Monthly No 10 (October), p 42.
[65] C Richardson, n 55 above, pp 33, 35-36.
[66] PNG Constitutional Planning Committee Report 1974: Draft Narrative, Ch 3, para 20, p 3/3. See also PNG Ombudsman Commission, n 45 above, pp 59-60.
[67] Sections 7 and 8, Organic Law on the Duties and Responsibilities of Leadership. See also PNG Ombudsman Commission, n 45 above, pp 59-60.
[68] See eg the case of Re Sigulogo [1988-89] PNGLR 384, and see also the report of the Barnett Commission of Inquiry referred to in that decision.
[69] See, for example, PNG Ombudsman Commission, n 45 above, pp 64-65, calling for reforms to be enacted along the lines of Singapore’s Prevention of Corruption Act.
[70] Ombudsman Commission of Papua New Guinea, n 45 above, pp 63-64.
[71] Additional avenues include laws such as the Public Finances (Management) Act 1986.
[72] Text of speech delivered by Mr. S Pentanu, Chief Ombudsman in response to the Opening Address by Tan Sri Dato, and Haj Mohd Eusoff Bin Chin, Chief Justice of Malaysia at 13th International Symposium on Economic Crime, at Jesus College Cambridge, England on 10 September 1995, extracted in (1995) 1The PNG Ombudsman: Bi-Monthly Newsletter of The Ombudsman Commission of Papua New Guinea No 2, pp 8-9.
[73] S Pentanu, as quoted in the Australian Financial Review (6 January 1995).
[74] The guarantees were signed (illegally) by the Prime Minister, the Finance Minister and two senior officials, to take advantage of an allegedly profitable “Trading Programme” that was in fact a scam. Given that the sum involved (US$ 100 million) was “significantly greater than the entire foreign currency reserves of the Republic of Vanuatu” at the time, the incident was one which left the country at risk of bankruptcy: Office of the Ombudsman, Republic of Vanuatu, Public Report: The Provision of Bank Guarantees Given in the Sum of US$100,000,000.00 in breach of the Leadership Code and Section 14 of the Ombudsman Act and Related Matters Thereto (3 July 1996).
[75] R Callick, “A country ripe for the picking”, Financial Review (23 December 1992).
[76] H Amankwah and K Omar, (1990) 18 Melanesian Law Journal, pp 74, 75.
[77] Office of the Ombudsman, Sixteenth-Nineteenth Annual Reports of the Ombudsman (March 1987 - February 1991, Fiji), Ch 1, para 1.4. See also Ch 2 of the Reports; and R Keith-Reid, “A time for reform, a time for hope”, Islands Business (September 1996), pp 38-39.
[78] Fiji CRC Report (1996), n 6 above, para 15.14.
[79] Fiji CRC Report (1996), n 6 above, para 15.30.
[80] Fiji CRC Report (1996), n 6 above, para 15.28.
[81] See further Dr W Narsey, “Fijians lose in a bad govt: crafting our electoral system to meet ethnic and national interests”, Fiji Times (2 November 1996).
[82] Fiji CRC Report (1996), n 6 above, para 15.38. For discussion in relation to the structure and size of the Ombudsman’s office generally, see also paras 15.112-113, p 528.
[83] Fiji CRC Report (1996) n 6 above, para 15.41. The CRC also endorsed the concern expressed in a number of submissions that:
“Some Integrity Acts make important officeholders liable to monitoring, investigation or prosecution for offences only while they remain in office. Wrongdoers in those countries have therefore escaped investigation and charges by resigning from office.”
This suggests that Fijian public office-holders could be prosecuted for offences against the proposed Integrity Code committed during their term in office, even after the office holder no longer held the relevant office. For an exposition of the problem in Papua New Guinea, see eg SCR No 5 of 1980, Re Joseph Auna [1980] PNGLR 500; and SCR No 2 of 1982, Re Kunangel [1991] PNGLR 1.
[84] R Nayacakalou, Leadership in Fiji (2nd ed 1990), pp 36-38. The author also noted that:
“It is really at the level of the vanua that chieftainship begins to emerge clearly as a definite institution. ... A number of vanua may be combined in a matanitu, of which the principal chief is the leader of the dominant vanua within it. But the relations of matanitu were in a state of continual flux ... In 1874 thirteen chiefs signed the Deed of Cession ... But when British rule was established, the fact that the colony was divided into only twelve provinces (supposedly on the basis of the ‘traditional’ political affiliations) indicates a different assessment. ... Today there is argument about whether Fiji should be divided into only two or into three major divisions based on the political alliances of former days.”
[85] Fiji CRC Report (1996), n 6 above, paras 9.12-9.33, Recommendations 205-213. At present, the BLV, although “recognised” by s 3 of the 1990 Constitution, is primarily a creature of statute - the Fijian Affairs Act (Cap 120). The CRC further recommended that as a facet of its independence from government, the BLV should be guaranteed reasonable autonomy in matters relating to its secretariat and funding. The Commission felt it was particularly important to ensure that the BLV should not only be independent from government, but also from any political party.
[86] The other Pacific Island jurisdiction where an attempt is made to reconcile the existence of both a constitutional council of chiefs and a constitutional leadership code is Vanuatu, and it may be useful for Fiji to have regard to the experience of that country: see Chapters Five and Ten of the Vanuatu Constitution. See also s 14 of the Vanuatu Ombudsman Act 1995.
[87] In regard to members of the judiciary, the CRC felt that they should not be included within the scope of constitutional standards for integrity in office, because to do so could expose members of the judiciary to comment and criticism by Parliament, the media and the public. In the CRC’s opinion, it would not be in the interests of justice for this to occur. The CRC did feel, however, that more detailed and well defined standards of conduct for members of the judiciary could be included a new Integrity Act.
[88] Fiji CRC Report (1996), n 6 above, para 15.26.
[89] Fiji CRC Report (1996), n 6 above, paras 15.29-15.36, and Recommendations 503-509.
[90] See eg s 35 of the Constitution, which sets out the procedures by which the President can be removed from office for misconduct in office.
[91] Fiji CRC Report (1996), n 6 above, para 5.24 at p 507.
[92] Fiji CRC Report (1996), n 6 above, paras 15.22 and 15.35, and see also para 15.28.
[93] “The Parties in Fiji’s 70-seat House of Representatives”, Islands Business (September 1996), p 38.
[94] W Narsey, n 81 above.
[95] W Narsey, n 81 above.
[96] “Letters: To lead is to serve yourself”, (1996) 66 Pacific Islands Monthly No 1 (January), p 4.
[97] “Govt bails out national bank”, (1996) 66 Pacific Islands Monthly No 1 (January), pp 6-8.
[98] Ibid.
[99] B Hussein, “Freedom of expression - an endangered institution”, (1996) 66 Pacific Islands Monthly No 8 (August), pp 15, 16-17.
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