RESOURCE MATERIAL SERIES No. 56

THE EFFECTIVE ADMINISTRATION OF CRIMINAL JUSTICEFOR THE PREVENTION OF CORRUPT ACTIVITIES BY
PUBLIC OFFICIALS
Roderick Kamburi*
I. INTRODUCTION
Recent years have witnessed a growing
awareness of the nature and extent of thethreat posed by transnational criminal
activities. The initial concentration onorganised international drug trafficking for
instance, or terrorism, has gradually
started to broaden to include other criminal
areas. Areas such as fraud, corruption,
counterfeiting and money laundering yieldhigh profits. Such forms of organised
transnational criminality is characterisedby the ability to diversify operations andengage in new activities or in newgeographical areas as soon as they appear
promising.
Corruption in public life is not a newphenomenon of the 1990s. However it has
taken an alarming dimension in recent
years. Such activities became a global
concern as countries around the world
began to realise that corruption, fraud,counterfeiting and money laundering has
become a multi-dimensional, national andinternational problem. As a result, it hashindered development, created poverty,
destroyed confidence in the legal andpolitical system, and undermined good
governance.
Having identified this problem,
countries around the world moved into
introducing anti-corruption bodies such as
Interpol, Europol and Transparency
International. Countries such as Australia,* Acting Director, Leadership Division, Ombudsman
Commission of P.N.G., Papua New Guinea.

492

Singapore and Hong Kong for instance,
have ready introduced anti-corruption
agencies of their own. As we acknowledge
that corruption in the public service hasflourished to an extent that almost nothingcan stop its continuous germination, what
can the authorities do to minimise, orrather terminate entirely, corruption in the
public service?
In my paper I will look at the level ofcorruption as I see it in my country (PNG).
I will look at individuals and agencies
engaged in this illegal activity. I will also
look at the laws and legislation that deal
with corruption matters and explain therole of anti-corruption agencies such as the
Ombudsman Commission and the police
force; the problems faced by theseorganisations in carrying out their duties;
and suggest ways to improve on the current
system of combating corruption.
II. LEVEL OF CORRUPTION
Corruption in the public service is notnew. In PNG it has reached the stage
where politicians and senior bureaucrats
are frequently taking bribes, especiallyfrom foreign companies intending to dobusiness in the country. Those that are
already operating in the country also
contribute to this illegal activity. It hasreached the stage where corruption has
become part of everyday life in the public
service. This is evident from the statistics(appendix A) that those who have beenprosecuted for corruption related offences
are people who occupied high offices.

113TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Our records shows that politicians tend
to be the ones up-front accepting bribes in
return for favours (eg, awarding
government contracts to a road
construction company whose owner is afriend of the Minister for Works). Major
foreign companies are also the main sourceof corruption. They offer tempting gifts andfavors with the intent to lure those inauthority to submit to their demands. Cashtransaction is the main form of corruption
in the country.
III. PROBLEMS ASSOCIATED WITH
CORRUPTION(i) Bad organisational structure(ii) Poor recruitment policy(iii) No Code of Ethics / old Code of Ethics(iv) Low salary / no promotion(v) Laws and legislation (draconian/weak)(vi) Desire for wealth (greed, selfishness)(vii) Inadequate training(viii) I n a d e q u a t e a u d i t i n g a n dmanagement system(ix) L a c k o f n o n - f o r m a l p e n a l t i e s(transfers, publication)(x) Organisational culture
IV. LAWS AND LEGISLATION
Besides other relevant legislation, theCriminal Code deals with almost all theserious crimes committed in the country.
It imposes a maximum penalty of life
imprisonment.
V. THE ANTI-CORRUPTIONCOMMISSION AGENCIES
There are two distinct anti-corruption
agencies operating in the country, the police
and the Ombudsman Commission.
However, a number of organisations,through their unique functions, indirectly
assist these two agencies in the fightagainst corruption. I will take you throughthese organisations later in this report.

But first, let us look at what the police andthe Ombudsman Commission do.
A. Police Force
A division of the police force known as
the Fraud Squad is responsible forinvestigations into matters concerning
fraud and corruption. They have beensuccessful in getting a number ofconvictions, some of which have received
long term custodial sentences. Although
the Constitution guarantees independence
for the police force (eg, it is not subject todirection or control by anyone) it is reallyat the will of the politicians.
1. A p p o i n t m e n t o f t h e P o l i c e
Commissioner
The Police Commissioner is appointed
by the Cabinet though recommendation of
the Minister of Police. Therefore, it isalways the Minister’s candidate who gets
appointed to the position. Past experience
shows that Police Commissioners havebeen subject to direction and control bypoliticians through the Office of the Police
M i n i s t e r. T h e r e f o r e , u n l e s s a n
independent appointment committee is set
up to appoint the Police Commissioner,
there is no guarantee that the police force
is independent, as the Constitution allows.
Our police force is a member of Interpol,
which means it has connections with otherinternational police forces who are also
members of Interpol.
B. Ombudsman Commission
The Ombudsman Commission wasestablished under Section 217 of theConstitution. There are three (3) Membersof the Commission (MOC); the Chief
Ombudsman and two Ombudsman.
1. Appointment
The members of the Commission are
appointed by the Head of State (Governor
General) acting to and according to the493

RESOURCE MATERIAL SERIES No. 56
advice of an Ombudsman Appointment
Committee consisting of:(i) Prime Minister(ii) Chief Justice(iii) Leader of the Opposition(iv) C h a i r m a n o f t h e P e r m e n a n t
Parliamentary Committee on
Appointments(v) Chairman of the Public Service
Commission.
2. Qualification
The Chief Ombudsman must be a personof very high personal qualities. It does notnecessarily mean being a person with aparticular qualification.
3. Ombudsman
The Constitutional Planning
Committees Report, to the then House of
Assembly, recommended that the two
Ombudsman should have the qualificationof an accountant and a lawyer. However
the Constitution does not clearly indicate
whether the Ombudsman should acquire
specific qualification. Therefore, anyone
can be appointed as Ombudsman.
4. SalaryThe salary terms and conditions of the
Chief Ombudsman shall not be less thenor inferior to the salary and otherconditions of a Judge, other then the Chief
Justice and Deputy Chief Justice.
Likewise, the salary terms and conditionsof the Ombudsman shall not be less thanor inferior to the salary and otherconditions of a public prosecutor.
5. Term and Removal from Office
The term of office is six (6) years. There
are only two grounds upon which an
Ombudsman can be removed from office.
First, by reason of physical and or mental
disability, and secondly, removed inaccordance with Division 2 (LeadershipCode) of the Constitution.

494

6. Functions
The Ombudsman Commission has three
primary functions conferred by Section 219
of the Constitution. They are:(i)

To investigate alleged wrongfulconduct and defective administrative
practice by government departments,
statutory authorities and othergovernmental bodies: the so-called
traditional role of the Ombudsman;and(ii) To investigate alleged or suspecteddiscriminatory practices; and(iii) To supervise enforcement of thenational Leadership Code.
My paper is based on the third item the Leadership Code which, in the absenceof an Independent Anti-corruption
Commission, operates as a de facto anticorruption agency in the country.
VI. LEADERSHIP CODE
The Leadership Code, and the
Ombudsman Commission charged to
enforce it, both came into being at our
independence in September 1975. At thetime of our independence, few Papua New
Guineans were exposed to western
influence, foreign ideals or were proficientin the English language. The majority ofour people were, and still are, living invillages, practicing their traditional
economy of barter and give and take, where
social obligations are so closely knit thatleadership is a natural outcome of suchsocial interactions. Today, PNG has leadersin many different areas of involvement wholook after our interest at the national andprovincial levels, as well as at the local andvillage community levels.
Our constitutional planners saw that as
an independent country, we could go
through a period of adjustment where ourleaders would have to be strong and113TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
committed in order to steer our country
through all kinds of influence, both goodand bad, so that the dominant culture of
the west would not undermine oursovereignty and independence.

upper echelons of public office-holders. The
only high public office holder excluded fromthe ambit of the Leadership Code is theGovernor General, who is the Queen’s
representative as Head of State.

It was for this reason that ourconstitutional planners decided that weshould write into the Constitution a
Leadership Code which would regulate thebehaviour of our national leaders, who not
only have the responsibility of guiding, butalso of determining, the destiny of ourpeople. The third goal of our Constitution
accommodates this:C. Why the Leadership Code applies
only to Leaders
We believe that the success of the nation
depends ultimately on the leaders and thepeople. Therefore, as the leaders are people
who occupy positions of power, authority
and influence, they are vulnerable to theoffer of tempting gifts and favours fromoutside forces. In accepting the offer, theleader will no doubt compromise theirposition thus placing themself in a
potential conflict of interest situation.
Therefore, in order to ensure that our
national leaders do not fall victim to theoutside force, the Leadership Code wasdrafted specifically to regulate the conductof the leaders whilst performing theirofficial duties’ as well as their private life.

“We declare our third goal to be for
PNG to be politically andeconomically independent, and our
economy basically self-reliant. We
accordingly call for our leaders to becommitted to these national goals anddirective principles, to ensure that
their freedom to make decisions is not
restricted by obligations to or
relationship with others, and to makeall of their decisions in the national
interest...”A. What is a Leadership Code?
The Leadership Code is a set of rules
which have been written into the national
constitution and the Organic Law on the
Duties and Responsibilities of Leadership(OLDRL) to serve one purpose only. That
purpose is to regulate the behaviour andconduct of our national leaders who occupy
positions of power, authority and influence.
Breach of these rules may result in theleader being prosecuted in the Leadership
Tribunal for misconduct in office.
B. Who does the Leadership Codeapply to?
Section 26 (1) of the Constitution
provides that the Leadership Code applies
to a wide range of public office holders. In
short, the Leadership Code applies to the

D. How is the Leadership Code
Enforced?
The Ombudsman Commission conducts
investigations into allegations against aleader, and when it finds that there is a
prima facie case of misconduct in office, it
is obliged under the Constitution to refer
the matter to the Office of the Public
Prosecutor for prosecution before an
Independent Leadership Tribunal. The
Tribunal consists of the chairman, who isa judge of the National Court, and twosenior members from the magisterial
service, all appointed by the Chief Justice.
Offences considered as “misconduct inoffice” range from immoral behaviour tocriminal offences capable of being
prosecuted both in civil and criminal
courts.
Section 27 of the Constitution verybroadly defines general acts of misconduct
in office. In addition, the Organic Law on

495

RESOURCE MATERIAL SERIES No. 56
the Duties and Responsibilities of
Leadership, which was enacted to
implement the Leadership Code, prescribes
in detail some very specific acts that
constitute or amount to misconduct inoffice. These are not exhaustive provisionsof the Organic Law, nor are they quoted
word for word from the relevant law.
E. Double Prosecution
It is not a bar for those found guilty inthe Leadership Tribunal to be tried before
the Criminal Court or vice-versa, based on
the same facts. The Tribunal is consideredan administrative proceedings and not acriminal proceeding as such. Therefore, thequestion of double jeopardy is immaterial
under our law.
F. Standard of Proof
The standard of proof required in the
Leadership Tribunal is proof on the balanceof probability. Although this is the case,judges sitting as chairman of the tribunals
have aired serious concerns on thestandard of proof and insist that in any
leadership tribunal, the standard of proof
should be raised to almost equivelent tothat of the case brought before the criminal
courts, although rules of evidence do not
apply in the Tribunal proceedings.
G. Penalties
The maximum penalty for anyone foundguilty by the Leadership Tribunal isdismissal from office. The dismissal
remains in force for three years from thedate the Governor General signs the
instrument of dismissal from office. Thismeans that the person cannot hold any
public office for a period of three years. The
Alternative Penalties Act also provides forlesser penalties if the Tribunal considers
that the offence committed is not so serious
to order dismissal from office.
H. Independence
The Ombudsman Commission is496

established directly unde.r Section 217 (5)of the Constitution, which states that in
the performance of its functions, theCommission, is not subject to direction orcontrol by any person or authority. Section
217 (6) states that the proceedings of theCommission are not subject to review inany way except by the Supreme Court or
the National Court, and only on the
grounds that it had exceeded its
jurisdiction. History shows that the
Ombudsman Commission has been vigilant
in its defence of the independence theConstitution has conferred upon it.
I. Cartoon Incident
In March 1992, the three Members of theCommission were summonsed before thebar of the National Parliament to give an
explanation for the inclusion in the annual
report of the Ombudsman Commission ofseveral cartoons dealing with the ethicalstandards of parliamentarians andministers in particular. The cartoons wereconsidered by the Parliamentary Privilege
Committee to be offensive, and an apology
was sought from the Ombudsman
Commission. However, the then Chief
Ombudsman, Sir Charles Maino, declined
to appologise. Instead, he gave what wasin effect a measured and rational
explanation to the MPs on the educational
value of the cartoons and the need tomaintain ethical standards in public life.
Subsequently there were in parliament
some rather undignified attacks made on
the Ombudsman Commission, and a draft
resolution was circulated which called forthe immediate sacking and imprisonmentof the three Members of the Commission.
Fortunately, it was soon realised that theParliament had no power of imprisonment
nor did it have the power to remove themembers of the Commission.
J. How does the Leadership CodeFight Corruption?
Corruption takes place between two

113TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
persons, the giver and the taker. In almost
all cases, takers are people who occupy
positions of trust, authority and influence.
Therefore, the Leadership Code acts as aregulator and prevents policy makers andthose in high offices from making decisions
which will benefit themselves, theirfamilies, friends and relatives. The
Leadership Code also helps to eliminate
those who seek to compromise theirposition for the benefit of others whose aim
is to manipulate and underpin thelegitimate process. In fact, theOmbudsman Commission is referred to as
the watchdog of the nation and is a verymuch feared anti-corruption agency in the
country.
VII. OTHER ORGANISATIONSWHICH HELP FIGHT CORRUPTION
The following organisations also play
important roles in the fight against
corruption in the country. They are:(i) Judiciary(ii) Correctional Institution Services(CIS)(iii) Auditor General(iv) Media(v) Transparency International
A. Judiciary (Courts)
There are five different court systems in
the country:(i) Supreme Court(ii) National Court(iii) District Court(iv) Local Court(v) Juvenile Court(vi) Village Court
The Supreme Court is the highest courtin the country. It sits to hear appeals andjudicial reviews on the decisions of thenational courts. The courts play animportant role in deterring the level andextent of the criminal activities by
imposing punishment provided by law.
Such punishment may include a custodial
sentence, fine, good behaviour bond, parole
or even confined to ‘Boys Town’ (if ajuvenile). These are measures the courts
can take to deter the further commissionof serious crimes.
So far, since the establishment of thecourt system in the country, the neutrality
and independence of the judiciary has
always been maintained. It is arequirement under the Constitution thatthe courts are given independence and areneutral at all times. The courts have aseparate budget, which they get throughsubmission in Parliament.
The problems of speedy administrationof trial depends entirely on theeffectiveness of the institutions involved in
the criminal justice process, such as the
public prosecutor, public solicitor, CIS,
police and courts working together. Right
now we have a shortage in the number ofjudges available to sit on trials and havethem processed.
Sentencing to goal remains the lastavailable resort, depending upon thecircumstance of the case. Alternatives togoal are quite popular, such as fines andprobation, but the lack of available
resources such as probation officers,
halfway-houses and rehabilitation centers,
make it quite difficult for alternative
sentencing options to be considered.
Constant and immediate communicationand cooperation amongst government
agencies and statutory organisations is
non-existent. This is because someinstitutions felt that the laws under which
they operate guarantees their
independence; eg, they are not subject todirection or control by anyone, or that they
are not obliged to disclose to anyone the497

RESOURCE MATERIAL SERIES No. 56
nature and extent of their affairs, except
to the Parliament. This is bad in theadministration of criminal justice becausesuch situations do not help the anticorruption agencies to fight corruption.
There should be constant dialouge between
each criminal justice agency andadministrative organisation. As I haveindicated earlier, problems of co-operationand co-ordination occur due to the creationof institutions to be independent from any
influence.
1. I n t e r n a t i o n a l C o - o p e r a t i o n i nCorruption Cases
At the Legal front, we are currently
corroborating with neighboring South
Pacific countries and South-East Asian
countries for the purpose of facilitatinginternational co-operation on money
laundering, environmental pollution,
sharing of expertise, etc.
In so far as the extradition treaty isconcerned, we do not have in place anextradition law or a treaty with otherneighboring South Pacific and Asian
countries. However, we do operate under
the commonwealth banner for the purposeof the extradition of fugitives and otherrelated matters. Meanwhile, government
lawyers are currently putting together adraft bill, soon to go before Parliament, forthe enactment of our own law in dealing
with extradition cases.
B. Correctional Institutional
Service (CIS)
The main function of this institution isto rehabilitate prisoners to live a normallife when they return to the community.
The rehabilitation programs conducted inthis institution are:(i) Education(ii) Religious programs(iii) Conflict resolution courses(iv) Prison industry

498(v) Community out-reach
The institution plays an important rolein changing one’s life through these
programs.
C. Auditor General
The Office of the Auditor General was
created by an Act of Parliament. The dutiesof this office are mainly to audit the booksof government departments and statutory
bodies which exercise governmental
functions. The Auditor General tables his/her report in Parliament annually, withfindings and recommendations.
Auditors play an important role in
exposing, or rather revealing, what can bestealing, misappropriation or even an
abuse of power by those in authority (eg,approval granted for the funding of acertain project without following tendering
procedures). Exposure by the Office of the
Auditor General helps organisations suchas the police and the Ombudsman
Commission in many ways. It shows where
the inquiry should start, and generally sets
the foundation for an indepth investigation.
D. MediaMedia also plays an important role in
exposing shady and questionable deals,
negotiations and agreements made insecret and in confidence by certain public
officials which are considered improper andbad in substance. Independence for the
media is guaranteed under theConstitution. Therefore there are no
sanctions whatsoever, resulting in its rightto report on almost anything.
In PNG, we have a private run television
station called EMTV. It is the only
electronic media we have in the country.
There is also a government owned radio
station called the National Broadcasting
Commission (NBC).
It has its
headquarters based in the capital, Port

113TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Moresby, with stations located in all the
19 provinces. There are also two private
owned radio stations called NAUFM andYUMIFM.
There are four print media publicationsin the country. They are the Post Courier,
The National, The Times and Wantok. The
Post Courier and The National are printed
daily from Mondays to Fridays, whilst theTimes and Wantok are printed once a week.
Exposure by the media immediately sets
the clock ticking the moment it ispublished, thus it greatly assists the police
and the Ombudsman Commission.
Unfortunately, I was unable to collect dataon the media reports. However, I can saythat about two to three corruption related
matters are exposed by the media eachmonth.
E. Transparency International
Transparency International was
introduced in PNG in 1998. Although theinstitution is quite new in the country, it
made its presence known when it organised
a number of seminars and workshops in
the nation’s capital, Port Moresby, toexplain what it can do to help fightcorruption in the country.
F. Independent Anti-corruption
Commission
The Government will shortly be
introducing in Parliament an Independent
Anti-corruption Commission bill. We
expect this to happen before the end of theyear.
VIII. PROBLEMS FACED BY
ANTI-CORRUPTION AGENCIES
Problems faced by anti-corruption
agencies vary very much from country tocountry. For instance, some countries havelaws which gives their anti-corruption
agencies autonomy, independence and thepowers that other anti-corruption agencies

do not have in their countries. For
example, some have the power of search,arrest and seizure without warrants, whilst
others don’t. Extradition laws, for instance,
are one of the main barriers in somecountries. For this and other reasons, itcannot be said that anti-corruption
agencies operating in their respective
countries face similar problems as those inother countries. Nevertheless, I have listed
below some problems faced by myorganisation in its fight against corruption:(i) Poorly resourced in terms of budget
allocation(ii) Poorly staffed(iii) Lack of skilled staff(iv) Inadequate training for staff(v) Bad organisational structure
IX. SUGGESTIONS FOR
IMPROVEMENT(i) T h a t P N G t a k e a l l t h e s t e p snecessary to rectify the problem areas
mentioned in this report.
(ii) That PNG should introduce an
Independent Anti-Corruption
Commission, given powers similar tothat of the Ombudsman Commission.
This organisation should have thepowers of search, arrest and seizureof properties (without warrant) which
are considered illegal.
X. CONCLUSION
Though we have come a long way since
our independence, we are still trying toimpress upon those who are affected by the
Leadership Code the significance of the law
and what it means in practice. We still
have problems in our hands, that is why I
am here in search of the answers to our
problems.

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RESOURCE MATERIAL SERIES No. 56
ANNEXURE A
LEADERSHIP TRIBUNAL
YEAR
1976
1978
1981
1982
1983
1985
1988
1989
1990
1991
1992
1993
1995

OFFICEMP (1)
Statutory Body (2)Suspended (1)MP (1)MP (1)MP (1)
Statutory Body (1)Manager - NPF
MP (1)PNGBC - Chairman
MP (1)MP (1)MP (1)MP (1)MP (2)MP (4)MP (1)MP (1)MP (1)MP (1)
1996
MP (1)*
MP = Minister of Parliament

RESULT
Dismissed
Reprimanded (1)Dismissed
Resigned
Dismissed
Fined
Fined
Fined
Dismissed
Resigned (later jailed five years on
the same crime)
Resigned (later jailed for the sameoffence. Resigned prior to dismissal)
Resigned
Dismissed
Resigned
Dismissed (later jailed for thesame crime)
Fined
Dismissed
JailedOFFICE DISMISSED RESIGNED REPRIMANDED FINE SUSPENDED TOTAL
MPS
10
7
2
19
OTHERS1214500