FUNCTIONS OF THE OMBUDSMAN COMMISSION
The Ombudsman Commission is one of the most complex institutions established by the Constitution. It is conventional to regard it as having just two functions.
. Performing the role of a "traditional" ombudsman (under its general "complaints" jurisdiction; and
. administering the Leadership Code (the specific "leadership" jurisdictions).
To put the Commission in its proper constitutional context, the Commission has three primary functions and, in addition, a number of complementary functions.
| Function | Source of Power |
|---|---|
| 1. Investigation of alleged wrong conduct and defective administration by governmental bodies. | Constitution, Sections 219(1)(a) & (b); Organic Law on the Ombudsman Commission. |
| 2. Investigation of alleged discriminatory practices, by any person or body. | Constitution, Section 219(1)(c); Organic Law on the Ombudsman Commission. |
| 3. Investigation of alleged misconduct in office under the Leadership Code. | Constitution, Section 219(1)(d); Organic Law on the Duties and Responsibilities of Leadership. |
Traditional Functions The first function allows the Commission to perform the role of a "traditional" ombudsman by investigating, either on complaint or its own initiative, administrative practices and decisions of governmental bodies which may be unreasonable, unjust, oppressive etc. Discriminatory Practices Under the second function, the Commission performs the role of what in other jurisdictions are called anti-discrimination or equal-opportunity commissions. In this context, its jurisdiction is not restricted to the investigation of governmental bodies. Section 219(1)(c) speaks simply of investigation of discriminatory practices "within the meaning of a law prohibiting such practices". There is only one relevant law in this area: the Discriminatory Practices Act (Chapter No 269), which applies to all bodies and persons. Though the Commission was established primarily as a means of imposing accountability and control on the public sector, this peculiar area of jurisdiction gives it an extra dimension in terms of its relationship with the private sector. Leadership Code Under its Leadership Code jurisdiction, the Commission performs the role of conflicts-of-interests commissions in other countries. But even that does not give a full picture of its responsibilities. In the absence of an independent, adequately resourced anti-corruption body, it has also become a de facto anti-corruption agency. It has been able to combine its extensive powers under the Leadership Code, together with the exercise of powers as a traditional ombudsman institution, in the overall fight against corruption in PNG. In addition to its primary functions, the Commission has a number of complementary functions.
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The Commission is one of a limited range of public bodies authorised by the Constitution to make special references to the Supreme Court to seek the Court's binding opinion on questions relating to the interpretation or application of the Constitutional Laws. In this respect, the Ombudsman Commission has been authorised to maintain a watching brief over the nation's constitutional development. By dint of this "hotline" to the Supreme Court, the Commission has become, to some extent, a guardian of the Constitution. Since Independence, it has been a fairly regular referrer of constitutional questions to the Supreme Court.
Under Section 57 of the Constitution, the Commission appears to have been given the power to enforce the Basic Rights. Section 57(2) suggests that any persons "with an interest ... in the maintenance of the principles commonly known as the Rule of Law" ought to be given standing to make applications on behalf of others in the Supreme Court or the National Court for enforcement of the Basic Rights. The Ombudsman Commission would appear to fall squarely within this category of persons. However, the Commission has never exercised this power. When it has investigated alleged abuses of the Basic Rights, it has confined its role to preparing reports and recommendations. It has never actively pursued the results of its investigations through the courts. The rationale for this approach lies in the Commission's perception of its role when it undertakes a human rights investigation. It performs the role of an independent investigator. Although it acts on a complaint, it is not acting for the complainant. The complainant is not its client. The Commission therefore has no paramount duty to the complainant. It would be inconsistent with the Commission's impartiality, for it to assume the adversarial role required of it, if such matters were pursued through the courts. Jurisdiction over the Governor-General The Commission has an important role to play concerning the office of Governor-General, the only senior office established by the Constitution not subject to the Leadership Code. The Governor-General is prohibited by Section 87 of the Constitution from holding any other office or position or engaging in any other calling, except with the consent of the Queen and Head of State, acting with and in accordance with the joint advice of the National Executive Council and the Ombudsman Commission. In this way, the Commission is included in the system of checks and balances which regulates the official conduct of the Governor-General. Integrity of Political Parties and Candidates The Ombudsman Commission has the power to regulate political donations and ensure that elections are protected from outside or hidden influences. The Organic Law on the Integrity of Political Parties and Candidates envisaged by the Constitution was enacted in 2001 was replaced 2003. The Commission has the power to enforce certain provisions of this Organic Law if breaches of those provisions occur. Judicial and Legal Services Commission The Chief Ombudsman's membership of the JLSC gives him (and the Commission) an influential role in the appointment process for all the Judges of the National and Supreme Courts, members of the Magisterial Service and key constitutional office-holders such as the Public Prosecutor and the Public Solicitor. | |||||||||||||
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