What Does the Ombudsman Commission Do?

The Ombudsman Commission is the citizen’s constitutional remedy against maladministration, and the enforcement arm of the Leadership Code. Section 217 of the Constitution is protected by the three-quarters absolute majority requirement in section 17(3).

Section 217 — composition and appointment

The Commission consists of a Chief Ombudsman and two Ombudsmen, appointed by the Head of State on the advice of an Ombudsman Appointments Committee:

• the Prime Minister, as Chairman;
• the Chief Justice;
• the Leader of the Opposition;
• the Chairman of the appropriate Permanent Parliamentary Committee — or its Deputy Chairman where that Chairman is recognised as generally committed to supporting the Government; and
• the Chairman of the Public Services Commission.

Sections 217(5) and (6) — independence and review

• In performing its section 219 functions, the Commission is not subject to direction or control by any person or authority.
• 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.

That is a narrow review ground — excess of jurisdiction, not disagreement with the outcome. See Nilkare v Ombudsman Commission [1996] PGSC 2; SC498 and Ombudsman Commission v Yer [2009] PGSC 45; SC1041.

Section 219 — the functions

1. (a) to investigate conduct of governmental bodies, officers and employees, local government bodies, statutory bodies wholly or mainly supported out of public moneys or whose controlling authority is mainly appointed by the National Executive, and the personal staff of the Governor-General, a Minister or the Leader or Deputy Leader of the Opposition — in the exercise of a power or function vested by law, in cases where the conduct is or may be wrong, taking into account among other things the National Goals, the Basic Rights and the Basic Social Obligations;
2. (b) to investigate any defects in any law or administrative practice appearing from such an investigation;
3. (c) to investigate, on its own initiative or on complaint, any alleged or suspected discriminatory practice within the meaning of a law prohibiting such practices;
4. (d) the functions conferred on it under the Leadership Code; and
5. (e) any other functions conferred by or under an Organic Law.

Section 219(2) — what makes conduct “wrong”

Paragraph (b) is the heart of it: conduct can be lawful and still wrong. Paragraph (e) makes an unexplained decision a matter the Commission can investigate. And the “deliberate judgement” override is significant — a decision otherwise largely insulated from review is still within the Commission’s reach.

Sections 219(3)–(5) — the limits

• The Commission shall not inquire into the justifiability of a policy of the National Government, a Minister, a provincial government or a member of a provincial executive — except insofar as the policy may be contrary to law, or to the National Goals, the Basic Rights or the Basic Social Obligations, or to an Act.
• It shall not inquire into the exercise of a rule-making power by a local government body.
• It shall not inquire into a decision by a court — except insofar as the decision may show an apparent defect in law or administrative practice under paragraph (1)(b).

Section 219(6) — what it can actually do

Section 219(7) requires an Organic Law to provide for the Commission’s powers and procedures — including access to all available relevant information, reasonable restrictions on availability, protection of secret or confidential information, reasonable limits in relation to national security, and provision for publicity. See the Organic Law on the Ombudsman Commission.

Section 219(8) defines conduct to include any action or inaction relating to a matter of administration — and any alleged action or inaction. Delay and failure to act are within jurisdiction.

The National Goals bind the Commission

Section 25(4) removes the non-justiciability of the National Goals for the Ombudsman Commission and Leadership Code bodies, which shall take the Goals fully into account in all cases as appropriate. Section 219(1)(a) says the same thing from the other direction.