The death of authenticity
PNG passes historic whistleblower law

The new ICAC bill examined

ICACDAVID KITCHNOGE

PORT MORESBY - I have read the organic law on the Independent Commission Against Corruption 2019 (OLICAC) bill and, on the whole, I think it is a great law that equips ICAC with real teeth to go after corruption.

You can download the bill here from the Act Now PNG! website.

ICAC will be made up of a commissioner, a deputy commissioner, a commission investigator and a commission prosecutor.

The commissioner and deputy commissioner will be constitutional office holders appointed by an committee set up under an insertion to the Papua New Guinea constitution.

Also, the commissioner and deputy commissioner can be a PNG citizen or a person of any nationality.

If a citizen, their terms will be no more than two cycles of six years each. If a non-citizen, then two cycles of three years each.

The commissioner will be responsible for the appointment of staff, including the investigator and prosecutor.

Section 16 of the bill prescribes the process for appointment of the commissioner and the deputy commissioner which includes advertising the positions, receiving applications and appointments.

Acting appointments can be made without adhering to this process but all permanent appointments must follow it. The age limit (75) allows for the appointment of very experienced people.

I have read the PNG constitution to find who will comprise the appointments committee but haven’t seen the proposed insertion of the relevant Section 220 (B). Perhaps someone knowledgeable can inform us.

I presume it will be a bipartisan committee. It is important to get this right. All the intents, purposes and the much hoped outcomes of the bill can be compromised if goons are appointed to the commission. The appointing authority is a key player in this whole machinery.

The bill has many strengths and it equips ICAC with the teeth required to stamp out corruption in PNG and allow us to develop properly. Here are some of the highlights, in no particular order:

Section 5(4) of OLICAC makes the application of the law retrospective. Corruption issues occurring prior to the law passing parliament can be investigated and prosecuted.

The Commission can legally intercept communications devices to overhear and spy on suspected corrupt transactions. But the commission is first required to obtain an interception warrant from the District Court to prevent abuse of the right to privacy of information

ICAC will exercise great power and people’s reputations will be on the line. So it is important to tread with caution. Section 49 makes it an offence punishable by K10,000 fine or three years imprisonment or both for filing false or misleading complaints with the commission. A necessary safeguard.

The Commission can conduct committal proceedings by itself without having to wait for another state authority. The public prosecutor will be responsible for arraigning a proper trial. However, the commission can prosecute cases by itself but must first obtain the consent of the public prosecutor.

If the prosecutor refuses to grant the commission permission to arraign a case, then it must provide reasons for the refusal. This is a great strength of the bill because it means the commission’s objectives are not totally dependent on the public prosecutor.

The bill protects witnesses and people who report corrupt conduct from any form of harassment and intimidation. This is an additional protection apart from protections to be provided by the Whistleblowers’ Act, passed earlier this week. I like it.

There is also protection for witnesses and ICAC staff from possible retaliation by an accused. I wonder if this section could be expanded to include subtle retaliation on the commission itself by another body or entity.

For example, we have seen over the years other constitutional offices such as Ombudsman Commission incapacitated by insufficient funding support. Could it be made an indictable offence under the bill if a prime minister or anyone is proven to incapacitate the commission through cutting funds with a corrupt intent?

Another section says an act or decision of the commission is not invalid merely due to a defect in the appointment of a member of the commission. This is important as stops people from getting off on so called ‘technical grounds’ if the appointment of a commission staff member is challenged.

I particularly like Section 33 which empowers the commission to be proactive and get involved in educational and awareness exercises to prevent corrupt conduct before it occurs. Prevention is always the best option.

A heavy load is placed on the prime minister because it mandates that it is a public official’s duty to report corrupt conduct to the commission even in instances where the prime minister deems it not appropriate to report that conduct.

This seeks to avoid the potential for a rogue prime minister to collude with public officials to cover up corrupt conduct.

The bill carries heavy penalties for witnesses or others who fail to cooperate with the commission’s investigations. Failure to cooperate attracts prosecution with a penalty of K10,000 or two years imprisonment or both. This is a strong disincentive for non-cooperation.

My summation of the bill is that it is a piece of legislation that gives the commission wide ranging investigative ability and prosecution powers with sufficient safeguards to prevent abuse of its functions.

It has been a long time coming and we congratulate and thank prime minister James Marape and all our members of parliament for voting for this law. You have shown us the courage of your convictions.

Let’s keep going and get the bill through all its required stages of reading, have it passed, gazetted and quickly implemented.

The guilty need to go to jail and die there and not have the dignity of departing peacefully after leaving behind a trail of national and personal destruction.

Comments

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David Kitchnoge

We hope parliament is currently passing this version of OLICAC as published on Act Now PNG website.

There have been suggestions of another watered down version floating around.

Barbara Short

Thank you, David, for that examination of the new ICAC Bill. I hope it gets passed.
I feel there has been so much corruption taking place that it will be hard to know where to start.
I hope some good people get appointed to run it and that the PNG legal profession will back it.
Yes, if it works, send a copy to Scott Morrison!

Philip Fitzpatrick

I would be concerned about the role of the public prosecutor, the rescinding of appointments and the funding arrangements. In the latter case Peter O'Neill used cutting off funds to Sam Koim to great effect.

I also like the retrospectivity of it. The new law will enable the ICAC to go after O'Neill and his cronies.

All up it looks pretty good.

Can someone send a copy to Scott Morrison please?

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