Monday, 31 August 2009 4:49 PM

Role of LCC- Reply to John Iko

Dear Editor,

Please allow me space to respond to John Iko's article on the subject: "How to prosecute MPs". I think it is vital that some of the points he raised are clarified so as not to mislead the public on the procedures of the Leadership Code Commission (LCC). While I wish to do so by making reference to the relevant sections of the LCC Act, I must clarify that this is not an attempt to legally interpret the Act but merely to explain the procedures of LCC, based on how it has been practiced over the years. I may not be in the best position to do this, as any body within the Commission itself would be preferable. However, to keep the ball rolling I think it's good that we continue the discussion on such as important issue.

As we all know the LCC is an oversight and governance institution, provided for under section 93 of the Constitution. Parliament passed the Leadership Code (Further Provisions) Act to establish the Commission and to formulate specific regulations enforceable by the Commission. Section 3 (1) of the Act stipulates the scope of Commission: "This Act shall apply to and in relation to all Leaders" and that "(2) Parliament may by resolution determine that this Act shall apply to such other persons or offices as may be prescribed by such resolution". According to the Act a "Leader" means any person who or whose office or position is included in section 93 of the Constitution and any person appointed to the office of Ambassador or High Commissioner in accordance with section 127 of the Constitution. Attaching the LCC Act with section 93 of the Constitution means that the LCC Act is applicable to the Governor-General; the Prime Minister and the other Ministers; the Leader of the Official Opposition and the Leader of the Independent Members; all other members of Parliament; the Speaker; members of any Commission established by the Constitution; public officers; officers of the government of Honiara city, provincial government officers, members of the Honiara city council and provincial assemblies; officers of statutory corporations and government agencies; and such other officers as Parliament may prescribe.

In relation to its complaints and reporting system as well as the investigative powers, section 18 of the Act states that: (1) "Any person may make a complaint to the Commission concerning any alleged or suspected misconduct in office of a Leader. (2) The Commission shall investigate or may lawfully delegate or authorise any person it deems fit to investigate any complaint received by it unless it decides not to do so on the ground that-(a) the complaint is trivial, frivolous, vexatious or has not been made in good faith; or (b) the complaint has been too long delayed to justify an investigation; or (c) the subject-matter of the complaint does not fall within the provisions of this Act or Chapter VIII of the Constitution. (3) The Commission may defer or discontinue an investigation on any of the grounds specified in subsection (2). (4) The decision of the Commission not to investigate a complaint, or to defer or discontinue an investigation shall not be called in question in any court of law. (5) On completion of an investigation by a person duly authorised under subsection (2), he shall submit his findings to the Commission, who shall thereupon make such determination as provided for in section 21.3 of 1987 s. 2
Section 21 covers the action by Commission on conclusion of investigation, where it states that (1) On completion of an investigation the Commission may-(a) where the Commission has determined that there is no substance in the allegations made against the Leader whose conduct or affairs have been under investigation, so declare; (b) where the Commission has determined that there has been misconduct on the part of the Leader whose conduct or affairs have been under investigation, but is of the opinion that such misconduct was of a minor or technical nature, warn or reprimand the Leader; (c) where the Commission has determined that there has been misconduct on the part of the Leader whose conduct or affairs have been under investigation, refer the matter to the Director of Public Prosecutions. Section 21.2 states that "the Commission shall give such publicity as it may consider desirable to its action in any particular case". Note that while the Act gives the Commission right to refer matters to the Director of Public Prosecutions, it does not provide for direct referral by the Commission to the Courts, but gives the last say on the Director of Public Prosecution to decide whether a matter be referred to court or not. Section 23 (2) stipulates that: "No proceedings may be commenced for misconduct in office except by the Director of Public Prosecutions" and section 21 (3) states that: "In the event that the Director of Public Prosecutions does not institute proceedings in respect of any matter referred to him by the Commission, he may furnish the Commission with a statement of the reasons for such decision -provided that such statement shall not be divulged to any other person by the Commission".

Hence looking at the above provisions of the Act it will be misleading to say that the LCC can refer matters directly to Courts. The LCC can only refer matters to the Director of Public Prosecution who would have to decide on whether to refer the matter to the courts or not. Having said that I really doubt whether this provision has ever been used in the past as according to my knowledge- which is subject to correction- the LCC has dealt with all the matters what were brought before it within its own powers and does not require any referrals as such. LCC is a governance institution that acts as a 'watch-dog' on the professional conduct of leaders. It is an independent body that investigates the conduct of leaders on behalf of the common people. It is independent of the court system hence its punitive authority is covered within the Leader Code Commission (Further Provisions) Act alone and its actions are not directly subjected to other regulations such as the Penal Code, unless a matter is referred to the DPP. It investigates and deals with matters in accordance to its powers vested upon it by the Constitution and Parliament through the Leadership Code Commission (Further Provisions) Act. Hence, it has its own investigative and punitive powers as prescribed, within its own jurisdiction. The Leadership Code Commission is a governance institution just like the Ombudsman's Office and the Office of the Auditor-General and as we all know these bodies do not have court referral powers.

In relation to LCC's responsibility to the public, the reality is that it is not obliged to provide information to the public. It can only "give such publicity as it may consider desirable to its action in any particular case" and therefore is not obliged to provide information to the public if its sees it inappropriate. The public has its own responsibility to seek information from such bodies, but just as the public do, the actions and functions of the governance institutions are also only limited to provisions of the Acts and relevant legislations under which they are established and operate. Hence, the work of the LCC is an 'end' in itself; it is not a 'means' to an 'end.' The Act clearly defines its scope and powers and it will not deal with any allegations or reports that do not fall within its jurisdiction.

Having saying that I certainly do not have any doubt on the ability of the police's anti-corruption Unit in its proper investigation of allegations against leaders, such as MPs and the independence of the courts in carrying out its function. As we all know, nobody is above the law and the fact that few MPs have been successfully investigated and prosecuted for their actions is an assurance that if properly understood and utilised the system that we have is fully workable and feasible to achieving better ends.

On that note, I believe Solomon Islands needs a law to regulate the flow and use of official information. Having such as law will help to increase the availability of official information to promote more effective public participation in the making and administration of laws and policies; to promote the accountability of Ministers of the Crown and government officials; and protect sensitive information where necessary in the public interest or to preserve personal privacy. Having such a law will strengthen the work of governance institutions, such as LCC and will create an environment whereby leaders are more transparent and accountable in the execution of their duties.


Disclaimer: The views and opinions expressed in this letter/article are those of Derick Manu'ari and do not necessarily reflect the official policy or position of Solomon Times Online.

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