Discipline the Undisciplined Force

By Jack Assa:  (Source: Sunday Chronicle News, 21st of July 2013).  

The increase in the indiscipline acts by disciplined forces like Defence, Police and Correction Services Officers will not go unrecorded in the history of this country. The increase in the misbehavior, undisciplined and criminal acts by the disciplined forces this year, reflects the lack of direction, control and command in the respective discipline forces.  

The misbehavior of the disciplined forces has tarnished the good name of the organization they represent. Every time, we hear CIS officers facilitating prisoners to escape, police brutalizing and robbing ordinary citizens, country’s flag bearers, the defence force going on rampage, burning and looting of shops and dormitories are an act of few undisciplined cowards that must be highly denounced. These comments, which were wide spread, received little, if any, attention this year. This is a problem that that has continued throughout these days. 

Why would our disciplined forces do that? Is it because they only get six months to one year training or is it because the recruitment of people with attitude problem? There is a fault somewhere that must be fixed for the protection of the people and image of the organization the serve and the state as a whole.  

People need the disciplined forces. It is part of the framework that makeup the state. Without the disciplined forces, lives of the people will be under threat, certain or whole the government objectives and policies will not be implemented, and the tugs and criminals will invade and illegal human trafficking and border crossing problem will rise. Hence, this country needs disciplined forced who are well trained, educated, behaved and respected people and not drug users, alcoholics, half criminals etc. These institutions apply proper thinking and quick accurate judgment as to when they should apply force. 

As far as the people are concerned, the disciplined forces are very important because they play a crucial functions and responsibilities within the community. In saying this, the police are trained to protect the people and their properties. Similarly, the DF are trained to defend the state against armed aggression; this being a contingency, preparation for its implementation will depend on an ongoing Government assessment of threats. In addition, DF are supposed to participate in multinational peace support, crisis management and humanitarian relief operations in support of the United Nations (UN) and under UN mandate, including regional security missions authorized by the UN. And the correction services officers are trained to look after prisoners, by correcting, training and shaping them to become better and productive citizens when they come out of prison after serving their terms. In saying this, the disciplined forces cannot use arm against the very citizens they swore in and took oath to protect and defend. If they do, this is a government sponsored attack on its citizens. 

I

n order to carry out their functions, the disciplined forces are provided with Rules of Engagement (ROE). Although ROE is common in military, it does applies to other disciplined forces. The ROE are rules or directives to the disciplined forces (including individuals) that define the circumstances, conditions, degree, and manner in which force, or actions which might be construed as provocative, may be applied. They provide authorization for and/or limits on, among other things, the use of force and the employment of certain specific capabilities. In some nations, ROE have the status of guidance to military forces, while in other nations, ROE are lawful commands. ROE do not normally dictate how a result is to be achieved but will indicate what measures may be unacceptable. 

While ROE are used in both domestic and international operations by most militaries, most countries including United States, ROE are not used for domestic operations. Instead, use of force by disciplined forces in such situations is governed by Rules for the Use of Force (RUF). There is no doubt that PNG should have RUF for the disciplined forces. However, the way things are going in this country clearly portrays that the disciplined forces have lost their minds, hence, using brutal force against the people they stand to protect and defend.

In addition, the disciplined forces must be aware of their behavior in public and remember that they represent an organization with a good reputation and image. When they are outside barracks or stations either on operational duty or training or just on time-off it will be essential that they are conscious that they represent the organisation and that they behave in a manner appropriate to the disciplined organization. 

Unacceptable behavior refers to behavior which a reasonable person, having regard to all of the circumstances, would consider offensive, humiliating or intimidating. This includes actions which are belittling, abusive or threatening to another person, adverse to morale, discipline or workplace cohesion, or otherwise not in the interest of the disciplined force.

Members of the armed forces are expected to be of the highest calibre, both physically and ethically, therefore it is hoped that each organization has put in place a number of regulations which impact on the lifestyle of the personnel. All the members of the disciplined forces are required to conform to the rules, laws and obligations as defined within their respective force discipline Act.

Our country major prisons are absolutely vulnerable. Not because the walls  and fences to prevent the escape of prisoners are broken but the very people who supposed to discipline them, providing the necessary skills and shape them to become good citizens when leaving the gate justly, turn to leave gates open, facilitating wanted and dangerous criminals to walk out easily and freely. An obvious example could be the escape of convicted rapist, murderer and bank robber William Kapris twice from the state’s largest Bomana Prison. Even after the government spent millions of tax payers’ money to arrest the convict, the disciplined officers find it very easy to show the high risked prisoner, the door way to freedom.

Not only that, our men in blue uniforms brutalized 74 men, severely wounding and told to walk all the way to Gordon police station which is a violation of human rights. This incident followed by the robbery of Konedobu liquor store by few rogue disciplined forces under the influence of alcohol. They walked away with cartoons of beer and forced the owner to give them money to save some beer cartoons. Likewise, six police officers forced their way into the shop in full police uniform, entered the room of the shop manager and removed about K20,000 leaving the store to close for four days at Malalaua station in Gulf Province. In another case, we heard a young man died in the hands of the undisciplined forces in Lorengau and one young aspiring student in Lae being shot dead last month. 

Equally, we saw couple of times the military personnel went on rampage by attacking civilians, looting stores, burning state facilities and wounding innocent people. A fine example is the attack at the Medical Faculty of the University of Papua New Guinea. Soldiers in battle gear raided the General hospital and the medical facility wounding many innocent students. Many witness described the incident as frightening when the defense force personnel made war cries and fired warning shots. This was a war between the armed force and the unarmed civilians.  

What is truly disturbing is that only one or two officers are suspended and the rest walk away freely, which is a slap on the face of the victims. How can this be when truck loads of officers going on rampage and only one or two being suspended? A tendency of protecting the rest regardless of the damage they contributed and only one or two being singled out and disciplined is absolutely unacceptable. “If you cannot investigate within your section and organisation, the outside world is too big for you”. 

The commanding and investigative officers must be serious rotting out what we see as a problem in this country.  Without reservation, ill and rogue officers must be condemned at highest possible terms and that is by showing them the door out. The people cannot continue to tolerate such cruel undisciplined forces. They supposed to be leading by example rather than posing threats on the lives of the ordinary people. This gives another option for civilians to arm and defend themselves from not just civilian criminals but rude and state sponsored criminal force.

The man and women in Uniform Blue, Green or Brown, you have an obligation to protect the people. Continuous misbehaving and criminal acts posed a threats on the ordinarily lives of the people who are already being traumatized and in fear. Now people have to have double eyes for not just ordinary criminals but state sponsored criminals. 

Having said that, the majority of the personnel in the disciplined forces are of high moral standing and worthy to be respected while only a handful of bad apples go around tarnishing the good name of their organization. Therefore, these rotten apples need to be seriously disciplined for the sake of the people, organization they serve and the state as a whole. God bless Papua New Guinea.

The writer is undertaking postgraduate studies and living in Indonesia. For comments and feedbacks, he can be contacted on jackassa945@gmail.com (email) / +081273238217 (Mobile Phone).

Police Brutality is a Big Problem in the Country

By Jack Assa

We do not need to look far to confirm brutal and cruel tactics applied by police personnel in this country. The cruel treatment of the citizens has become normal. Even if reported to higher authorities, there seem to be no follow up investigations and the case seem to vanish after few days.  Excessive use of force by police officers undermines faith in the criminal justice system. Citizens of this country expect those in blue uniform to follow the law as well as enforce it, but these two roles often come into conflict.

As far as the job description of the police personnel are concern, the role of the police is to maintain law and order, protect and safeguard the lives and properties of the citizens, which is the key role of the police force. This definition seem to be from theoretical perspective, in practical, it’s the opposite. Let me share two police brutality that caused wide public outrage.

Few weeks ago, our men in blue uniform brutally beaten and injured seventy young men in Port Moresby. It was alleged that these men were returning from Eight-Mile settlement after retaliating following the death of a relative when they were assaulted by officers in five police vehicles near Erima. Their weapons were concealed as they made their way home when five different police vehicles sped toward them and officers jumped out with guns and threatened to shoot them. “After threatening us at gunpoint they forced us to lie face down and without warning they started beating us with sticks and later hacked at our legs with our own weapons”, recounts by one of the victim. The cruelest thing is the wounded men were then forced to walk from Erima to Gordons police station with blood dripping from their injuries and were all locked up in the police cells without medical attention. Isn’t that cruel treatment? Where is justice? Are they not human being, the one police claim to protect?

Another similar incident occurred within the same week and after the above incident. This incident was clipped by the rogue officers from Gerehu Police Station themselves and later uploaded on social media including facebook and youtube which has attracted negative comments from the people who viewed the clip. In this incident, the rogue officers forced two men to strip naked and carry out indecent acts at the Gerehu Police Station. Viewers could clearly hear the rogue officers coaching the two men on how to do it.

It was indeed disgusting. You can clearly tell the high level of knowledge and experience they had from the way they were directing the two young men to do the act that clearly eroded their dignity as a person. These two and other incidents by the police must be condemned at highest possible terms

Moreover, these are tarnishing the good name of the police force. When will the heads of the police force take serious measures in curbing the acts that directly violates human rights? The constitution of this country provides that “one is innocent until proven guilty” by the court and not police. Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense. We all know that the Courts of this country alone will decide on what kind of penalty should be applied onto the citizen if found guilty and not the police. The constitutional duties of each institutions must be respected and uphold under all circumstances.  This is a very old legal principle that exists for ages and it is till vibrant today, yet our police personnel may have forgotten this.

With due respect to the handful of civilized officers, majority of the personnel are rogue. The question is why are men and women in blue act the way they do? Is it because of the dropouts being selected to become police? Is it the recruitment or training problem? Do they lack moral ethics? Many of these and other questions can be well answered by the department itself. However, it is highly presumed that it comes back to the level of education one has, recruitment and training of the staff, upbringing of the personnel before joining the force and peer influence within the force. 

According reports presented in a Police meeting this year, eighty-seven officers have been dismissed from Papua New Guinea’s police force between 2010 and 2012 and other seventy three were demoted for similar reasons. However, this has not stopped the rate of police brutality in this country. This year, police violence has taken another level and become a major issue with hardly a weekend passing without one instance of violence perpetrated by officers.

The police hierarchy has taken a tough zero tolerance stance on police brutality but this is not reflected in the performance of the personnel. There is something wrong somewhere, and the hierarchy needs to take drastic actions now or never. Let me propose at least two approaches that can help reduce and eradicate police brutality.
1. Professional Approach

One strategy to reduce police brutality is to emphasize professionalism in the police force. This strategy aims to reduce incidents of police misconduct by ensuring that law enforcement agencies employ only the best-educated, best-trained individuals. Just like other field of study, those who wanted to build a career in police force must apply from grade 12. And only those who have higher grading must be accepted. The department must add some value in it, rather than doing mass recruitment from the streets.

Following this strategy begins at the recruitment and training levels. It includes more rigorous psychological screening before admitting prospective candidates to a police academy, as well as increased training on brutality issues and the appropriate use of force. The recruitment officers must do proper background investigations for the applicants. This is very crucial, if we are to produce quality and good image.  

Moreover, change the image that instructors are portraying to the recruits that they are going into battle and fighting a war, that it will be “us against them”. The techniques being taught are strictly defensive in characteristic and not offensive.

Another step may include longer probationary employment periods for newly sworn police officers. This will help in the weeding of rotten apple from the right ones.

2. Bureaucratic Approach

Critics of the professionalism strategy contend that it ignores elements of organizational culture within a police department that may foster attitudes that tolerate excessive force by officers. Police work, by its nature, is stressful and involves encounters with the worst elements of a city, often leading to police distrust for particular communities or even the public at large. The so-called bureaucratic strategy for reducing police brutality involves continuous training on appropriate physical force, written policies and procedures on appropriate use of force, and even external reviews of police actions. The culture within the department has a direct impact on performance of the officers.

The people cannot continue to accept such ill behavior by the people. Change must take place within the department. It’s about time the government must see it as a problem and act decisively. Remember, we are not just dealing with citizens but the dignity of a person as a human being. We must handle human beings with care and respect. In the past, police brutality was considered to be a practice limited to only a few “bad apples” within the agency. However more recent and frequent occurrences seem to suggest that it is the result of norms shared throughout departments and that, unfortunately, it is a consequence of the officer’s role. Police officers are given the unrestricted right to use force in situations where their evaluation of the circumstances demand its use. However, it comes with responsibility.

Let me conclude here by saying that the excessive use of force by police personnel on the citizens are not just disturbing but a huge problem that the government seriously needs to look into it. There is nothing more destructive to a country than its own government employed police force breaking the law.

The writer is undertaking postgraduate studies and living in Indonesia. For comments and feedbacks, he can be contacted on jackassa945@gmail.com (email) / +081273238217 (Mobile Phone).

Source: Sunday Chronicle PNG, 14th July 2013

Can Conjugal Bail of Prisoners Curb Sex Crime?

By Jack Assa

Most recently, the social media sites have been flooded with comments from Papua New Guineans living within and abroad, criticizing the comments made by the Hon. Minister for Religion, Youth and Community Development and Member for Lae, Ms Loyjaya Toni, who is the only female Minister in the current O’Neil-Dion cabinet.  While condemning the recent incidence of rape and violence in PNG targeting local and foreign women, she said that no women or girl should be subjected to rape but there was a link between prisoners on the run and PNG’s high sex offence rate as reported in the Post Courier.  She was quoted saying “…some prisoners should be released on bail to have sex with their wives to reduce sex crimes.  She thinks that when men escape after being locked up and deprived of sex they will "find a female … to vent their sexual aggression". Her solution to the problem was to release low and medium-security prisoners on weekend conjugal visits in order to "prevent rising levels of sexual frustration".

Even though, Ms Toni was trying to bring a solution to the current escalating problem in the country, it has been panned in the social media sites by more than 1000 people. Some argued that it was not a proper way, while others believed that conjugal bail is not appropriate for inmates. From a global perspective, the initiative by Ms Toni is not a bad solution; hence, it needs more research and consultation, if it was to be implemented in PNG. Today, this article discusses conjugal visits as a Prison Rehabilitation Program (PRP) and provides a bigger picture of how government can go about dealing with prisoners to ease the sex and crime rate in the PNG.

What is a Conjugal Visit? A conjugal visit is a scheduled extended visit during which an inmate of a prison is permitted to spend several hours or days in private, usually with a legal spouse. While the parties may engage in sexual intercourse, the generally recognized basis for permitting such a visit in modern times is to preserve family bonds and increase the chances of success for a prisoner’s eventual return to life outside prison.

Is Conjugal Visit run in other Countries? Conjugal visits are offered as a PRP in many prisons around the world. Some of the countries that run conjugal visits include Australia, Brazil, Canada, Denmark, Germany, Ireland, Israel Mexico and Russia to name a few. In the United States, inmates must meet certain requirements to qualify for this privilege, for example, no violation of the rules in the last six months, history of good behavior, and so on. Those imprisoned in medium or maximum security facilities and inmates on death row are not permitted conjugal visits. In the United States, New York, California, Mississippi, Washington, Connecticut, and New Mexico are the only six states that currently allow conjugal visits. There are strict rules and requirements, from behavior to sexual orientation and disease status. France and Canada allow prisoners who have earned the right to a conjugal visit to stay in decorated home-like apartments during extended visits. In Brazil, male prisoners are eligible to be granted conjugal visits for both heterosexual and homosexual relationships, while women’s conjugal visits are tightly regulated, if granted at all.

What are the advantages and disadvantages of Conjugal Visits? The advantage is that conjugal visits will help preserve family bonds, and increase the chances of success for a prisoner's eventual return to life outside prison. Additionally, they serve as an incentive to motivate inmates to comply with the various day-to-day rules and regulations of the prison, to avoid any infringement which might disqualify them from having a conjugal visit. The biggest disadvantage for conjugal visit is that there are high chances of drugs and arm smuggling into the prison. It compromises the security of the prison. Running the program means having more officers on guard, facilities, manning security in and around the prison. . Generally, it will come at a high price.

What are the challenges, if the program was to be implemented in PNG? It will definitely come at a high expense. This will mean each prison within the country will need extra facilities to accommodate such program. The challenges include research and wider consultation; Funding issue; most couple do not have mirage certificate; Papua New Guineans do not have national identity card like Indonesians and other countries; Polygamy fueled problems likely to erupt; do not have the facility to cater conjugal visits; Will require extra employees/ CIS officers; Funds to build facilities around the country for Prisoners for conjugal visits; Determining the marriage status of a prisoner (some prisoners can lie just for other illegal activities); Security of the prison at stake and many other issues needs to be analyzed and projected.  

Is it possible to grant Conjugal Bail now in PNG? No, it is not possible in PNG now. However, the CIS can implement other PRPs discussed in this paper. In addition, given the continuous prison breaks experienced in the last few months, which includes Bomana (Port Moresby) Beon (Madang) Barawagi (Simbu), Baisu (Western Highlands). Many of the escapees are still on the run and yet to be apprehended by the Police. If prisoners are granted conjugal bail, there is possibility that many of the prisoners will not return to serve their full term. Papuan New Guineans do not have national identity cards nor a mirage certificates to confirm that they are legally married. Therefore, it is quite complicated determine the mirage status of a prisoner and identity of the wife/wives. There is possibility of trafficking drugs and illegal weapons in and out of the prison, hence, compromising the security of the prison.

Can Conjugal Visits offered in Papua New Guinea? It can be offered in PNG but subject to deep research and consultation for a long period of time. To grant a conjugal bail means moving out from the regular prison wards to the conjugal visit facilities for some hours or days but within the actual prison camp. I will not agree with the Honorable Member for Lae, if she wants the prisoners to visit his or her family and return to the prison after some days, which is not done anywhere in the world. It seems common today that every prison break out involves a woman. The two major break-out in the history of PNG by serial rapist and bank robber William Kapris involved a “female lawyer” and a “female nurse”. This already gives an impression of how it would be like in the future if conjugal bail is implemented.

Are there any other Prisoners Rehabilitation Programs available? Apart from the conjugal bail or visit as claimed by Ms Toni, there are other PRPs that have been proven effective in other parts of the world. PRP helps and prepares a prisoner to fit in the society after serving her/her sentence terms.  Some of these PRP includes but not limited to:

1.  Victim-offender Mediation (VOM): Victim-offender mediation, (also called victim-offender dialogue, victim-offender conferencing, victim-offender reconciliation, or restorative justice dialogue), is usually a face-to-face meeting, in the presence of a trained mediator, between the victim of a crime and the person who committed that crime.

2. Faith-based programs: Many countries have turned to religious programs that seek to change inmates’ internal motivations as well as external behaviors. The government needs to support programs, as a key focus of its Faith-Based and Community Initiative, an effort to encourage religious charities and other nonprofits to provide social services.  Faith based institutions needs to operate prison and provide religious programming aimed at rehabilitation.

3. Prison Education Program: Offer some basic education (i.e. literacy and Vocational Training) to inmates in prison. Skeptics claim that, in many cases, prison education produces nothing more than “better educated criminals”. However, many studies have shown significant decreases in recidivism. A study by the U.S. Federal Bureau of Prisons found: “The more educational programs successfully completed for each six months confined, the lower the recidivism rate.”

5. Drug Treatment: Drug-dependant individuals are responsible for a disproportionately large percentage of violent crimes and property offenses. Because so many drug addicts become involved with the criminal activities in PNG, which also takes up a significant portion of PNG’s law-enforcement and corrections budget, prisoners must be offered drug treatment programs.

 6. The Honor Program: Based on the principle of incentivizing positive behavior and holding individuals accountable for their actions, the purpose of the Honor Program is to create an atmosphere of safety, respect, and cooperation, so that prisoners can do their time in peace, while working on specific self-improvement and rehabilitative goals and projects which benefit the community. Prisoners wishing to apply for the program must commit to abstinence from drugs, gangs, and violence, and must be willing to live and work with fellow prisoners of any race.  Such programs can save PNG taxpayers hundreds of thousands, if not millions, of Kina. 

Ms Tony might make the comment thinking that rape and sex crime is done by the former prisoners who are granted freedom after serving their terms for various crimes they committed. How do we know that the sex crime is committed by a former prisoner? Where is the data to show that only former prisoners commit sex crime? Can the police and CIS confirm that most sex crimes committed in the country are by ex-prisoners? To find out about this, the relevant bodies including the PNG Police Constabulary, Ministry of Community development and Correctional Institutional Services (CIS)  needs to keep the record of each prisoner and his/her crime. To conclude, subject to deep research and wider consultations, an appropriate decisions needs to be made.

The department of CIS must set its goals and priorities right. The government through CIS needs to treat the prisoners not like criminals but the citizens of the country so when they come out of the prison after serving their term, they will act like citizens and not animals. A prison is not only where criminals locked up for years for the crimes they committed but at the same time, helping them to be a good citizen when they return to their community. The Department of Corrective Services' biggest goal is to help offenders gain the skills they need to live a law-abiding lifestyle once their sentence is complete. There is a widely-held public opinion that the institution can 'cure' people of their offending behavior, however the reality is much different. Instead, the institution aims to help them get their lives back on track by better understanding their offending behavior and learning new ways to avoid reoffending.

The writer is undertaking postgraduate studies and living in Indonesia. For comments and feedbacks, he can be contacted on jackassa945@gmail.com (email) / +081273238217 (Mobile Phone).

Source: Sunday Chronicle. July 7, 2013 (p.13)

PROPOSED AMENDMENT TO SECTION 124 AND 145 of the Constitution

PRESS RELEASE

3rd July 2013

PROPOSED AMENDMENT TO SECTION 124 AND 145 OF CONSTITUTION IS STEP TOWARDS UNCENSORED CORRUPTION, GAGGING OF PARLIAMENT AND ANARCHY

Hon. Sam Basil, MP, Deputy Leader of Opposition called on the Prime Minister to withdraw his Governments proposed Amendments to the Constitution in particular Section 124 (Calling of Parliament and Meeting) and Section 145 (Votes of No Confidence). 

He said that the Government is overstepping the calls of the Constitutional Planning Committee (CPC) and the Constituents Assembly’s wisdom to provide mechanisms to contain corruption, rid out despots who want to hold onto power and also the need to change a Government that is not delivering to the people. 

The Recommendations of the CPC needs to be read again by the Prime Minister and all Members of Parliament as the reasons why certain provisions were incorporated into the Constitution.

Hon Basil said that the proposed amendment in particular the Number of Sitting Days and also manner of giving Notice and numbers required to sign on Motion of No Confidence, in this case Section 142 and 145 is not good for the country and for the future. 

The very provisions that we all oppose including the founder of Peoples National Congress (late Hon Sir William Skate) and Hon Peter O’Neill (then Opposition Leader) desisted and did not allow Grand Chief Sir Michael Somare to pass the Law to amend Section 145 from 12 months is now becoming the agenda of this Government.

The very reasons many people including Peoples Progress Party, PNC and others argued against under Somare was that we don’t want a dictator, nor rights of the people are trampled upon is the same argument we must now state as to what is the rationale for this amendments.

Hon Basil said that the Proposed Law was gazetted and circulated to Members of Parliament on 12 June. 

The proposed Law in Meeting of Parliament is Section 124 which states that

“Parliament shall meet not less frequently than 3 times in each period of 12 months and in principle, for not less than 9 weeks in each period”

This will be amended to state that “Parliament shall meet not less than 40 days in each period of 12 months” 

The proposed Law in Motion of No Confidence is Section 145 

(1) which states

“ (a) one weeks’ notice to be given to be extended to three months

“ (b) MP to sign the Motion is from one tenth (11 MPs) to one third being (37 MPs). The proposed Law to amend Section 145, is seen as complementing the earlier Law that increased the grace period from current eighteen (18) months to thirty months. 

So, instead of the Motion signed by one tenth (1/10x111= 11 MPs) with a PM nominated and matter dealt within a week, this amendment will ensure the Motion is signed by one third (1/3x111= 37 MPs) but the period of notice will be three months before it is moved.

Further, Hon Basil said that the number of the sitting of Parliament which is 9 weeks in each period of 12 months was ruled to be about 63 days by the Supreme Court.  This also happened under the then late Sir William Skate, PNC Government who adjourned continuously when the country was going down and economy about to collapse. 

Are we seeing a repeat of that trend hence, the need to safeguard the Prime Minister and his Government? The provision in Section 124 is for Parliament to meet for not less than three times that is meant to be quarterly meetings. 

The proposed amendment is removing that quarterly period and providing for not less than 40 days which is less than required 63 days as clarified by the Supreme Court in the current provisions of the Constitution. Hon Basil said that the Amendments will allow for Parliament to meet for say 45 days in January, March and April, which is more than 40 days and cannot meet further. 

This defeats the purpose which states three time periods of no less than 9 weeks x 7 days being 63 days and more. This Proposed Laws to alter the provisions of the Constitution is defeating the Parliamentary process of changing a Government including the Prime Minister for reasons highlighted by the CPC in its CPC Report of 1974.

Hon Basil said that it is not right and the general public must be consulted with public debates and consultation.  Also, after 40 years, the words such as despots and corruption which was hard for the CPC to define then are now becoming obvious and it is time to have the whole Constitution reviewed.  There is urgent need for the appointment of Bipartisan Committee on Constitution to work with the Constitution and Law Reform Commission to open discussion, travel around the country to get the people’s views and recommend whether we should amend various provisions or not.

If this is not done, we are moving into widespread corruption, poor governance and transparency and to anarchy when Parliament cannot meet as and when required to deal with matters of national importance and also to remove a corrupt and despotic government.

Authorised by:

Hon. Sam Basil, MP

Deputy Leader of Opposition & Member for Bulolo

Public Private Partnership in SOE to Deliver Public Services (PART 2)

BY JACK ASSA

Last week, we briefly looked at the definition of public private partnership (PPP) and why it was important to use it as a strategy to deliver much needed public services in the country. Now we will look at how PPP can be implemented, the crucial issues in reforms, the best practices in the field by SOEs, and the specific PPP models that may be considered by the SOEs in the country.

The implementation of PPP requires a win-win solution between two seemingly conflicting premises. On one hand the government has a mission to keep provision of public services remain as a social function, while (logically) on the other hand the private sector when given the opportunity would do it on the basis of normal business terms in order to secure investment returns and the ability to reinvest.  To deliver services through PPP successfully a great change in perception on how public services are made available with respect to these two opposing premises has to prevail.

In effect, adopting PPP concept implies a change of vision, namely a shift from security oriented to prosperity oriented one; however still in proportional balance between the two. This leads to the need for reform in legislative, institutional and regulatory frameworks governing economic sectors related to public service activities. Indeed, the reform constitutes the strategic element in approaching towards successful PPP implementation. In today’s globalized economy, the reform should also be aimed at attracting foreign development investment (FDI) or private sectors.

Since PPP is designed to satisfy public needs, the strategy in achieving it must be guided by a number of general public domain principles. Firstly, the state must remain natural the monopoly holder of public services, in the sense that it remains the guardian of public interests while simultaneously adopting a pro-business vision in playing this role, by positioning itself as an affirmative regulator and facilitator. Secondly, the government, despite sharing with the private sector, will not shift the ultimate responsibility and accountability with respect to the public from the state to the private sector. Thirdly, the public will be the eventual decision maker in choosing what utility services that they need, with the quality and at price that they can afford to pay. (This is why PPP can be referred to as an agent of public empowerment).

Thirdly, PPP will enhance new development and expansion of the public service utilities to meet the growing public demand. This will also promote skill development and technology transfer especially in the management, operation and maintenance of public service utilities. And finally, transparency and best practice towards public accountability are to be most important code of conduct of both the government and the private sector. How far can the reform be a pro-business one, and yet still subscribes to these principles will really determine the success of PPP.

Nevertheless, PPP will face some crucial issues. The first issue is ownership right on assets. By nature, the state is very much concerned about sovereign right on the public assets. Investment in public infrastructure development is a considerably high risk undertaking, thus ownership is a principle issue to investors (and their money lenders). Actually their main concern is that assets need to be placed under their control during operational period in order to be bank collateralable to safeguard their investment against major risks. However, in PPP concept asset ownership is shared between the government and the investors. Normally the government owns and control assets which are already existing (including land), while investors provide capital and technology. As natural monopoly on public services is still lies with the state, in PPP it is an absolute necessity that the government plays a role as a strong but credible regulator, while at the same time a good facilitator to investors. In whatever business format adopted, the main aim concerning ownership is eventually how to come up with a legal framework which will ensure bank collateralability of assets by investors (or the like, one way or the other), but politically also gain public acceptance. By exercising more prosperity rather than security mentality in the reform process, the issue of sovereign right on assets in this variety of possible business formats should no longer hold relevance and could be comfortably resolved.

The next issue facing PPP is operation and management of assets. As the government is natural monopoly holder of the provision of public services, commonly it will give concessional rights to one or more of its state companies to operate and manage public assets. Private sector may then be given a role as sub-contractor to the state company to do the job, or given delegation authority to manage and operate, on behalf and under the flag of the state company. With today’s need for massive investments in public infrastructure development, government’s application of this principle is no longer attractive to investors. They would be reluctant to invest if not given right to directly control assets. Since PPP is a concept of sharing risks, responsibility and accountability, based on the prevailing social and business environment a number of possibilities can be explored to solve this dilemma with a win-win proposition to both sides through a joint-operation scheme. This is where the entire business operation and management of assets are jointly executed by both the state company and the investors, but with the state company still bears the main responsibility and accountability to the public.

The third issue is risk sharing and mitigation. Since the investment is highly capital intensive, investors would definitely need maximum mitigation of non-commercial risks, and to a certain extent also commercial ones, in form of reliable investment protection regime with credible judicial and arbitration systems adhering to international standards and institutions. Commitment of the government to provide back-ups or guarantees, or at least its accommodative attitude to affirm support in solving these private investor’s concerns, would be another concrete manifest of sharing of risks-responsibility-accountability on the side of the government.

The final crucial issue is concerning tax. One major consideration before investors decide on investing in infrastructure development is whether there are tax and other fiscal incentives provided by the government, at least during the operational years before reaching break-even-point. These include income tax holiday, reliefs from VAT, witholding taxes and   other levies as well as tax discounts. Such incentives will speed up investment returns, encourage investors to further reinvest in new as well as expanded infrastructure networks, enhance skill development and transfer technology.

Moreover, reforms need to be accompanied by best practices in SOEs.  Very importantly, the function of state institutions is to regulate and facilitate public service delivery. IPBC need to be in synergy to ensure effectiveness and efficiency beginning from the planning stage, devising of project tender & contracting procedures down through supervision on their execution stage. In addition to be efficient and productive, SOEs which are involved in the PPP need to change their culture and business ethics, from traditionally closed and accountable only to shareholder to more open,  transparent, environmentally aspired and accountable to the public. With such ethics enterprises will have a greater sense of public responsibility. They will look at the public not just as an object, but rather as a subject, thus empowering the public as a market, not just the enterprises themselves as such. Such a change in corporate culture is a prerequisite for the success of PPP where win-win settlements with the state will be much more likely achieved and open the flood gate for service delivery.  

Furthermore, SOEs need to decide as to what specific PPP Models to use. The following are some of the models that can be applied. Build-Operate-Transfer (BOT) is the most common model applied in many institutions today. This model is normally suitable for PPP in new projects to develop non-moving basic infrastructure networks such as toll-roads, electric power transmission & distribution lines, main airports and seaports etc. Private sector with or without equity partnership in a joint-venture with state owned company, may develop the infrastructure. The operation however is to be jointly performed with the licensed state company. After a number of years as specified in the BOT-contract, ownership of assets is transferred to the state company. The joint-venture company may then continue developing new projects, so in effect it operates like a developer company.

Secondly, the Build-Transfer-Operate (BTO) model is suitable for upgrading or modernization of existing non-moving basic infrastructure. The investors with or without equity partnership in a joint-venture with state owned company, develop the project but after completing the construction ownership of new assets is transferred to the licensed state company and the system may be jointly operated for a specified/unspecified period of time.

The third model is Build-Own-Operate (BOO). This model is suitable for the development and operation of the rolling stocks utilizing the non-moving basic infrastructure such as roads, Independent Power Plants, etc. Investors with or without equity partnership with state owned company, may develop, then own and operate the system with no obligation to transfer the assets to the state. With BOO model competition is stimulated and service quality improved.

Let me conclude by saying that private sector has huge potential to deliver public service. Therefore, the state and its entities need to partner with the private sector through one of the PPP models.  This will not only result in a “win-win” solution, but deliver much needed public services effectively and efficiently to the people. Next week, we’ll look at the issue of “conjugal bail of prisoners for sex to curb sex crime” in Papua New Guinea. Wish you God’s blessings for now.

The writer is undertaking postgraduate studies and living in Indonesia. For comments and feedbacks, he can be contacted on jackassa945@gmail.com (email) / +081273238217 (Mobile Phone).

Source: Sunday Chronicle Newspaper Papua New Guinea 30^th June 2013