National Goals and Directive Principles

The Constitutional aspirations of the people of Papua New Guinea are enshrined in the five (5) National Goals and Directive Principles. The second goal declared under the Constitution all the Papua New Guineans to have equal opportunity to participate in, and benefit from, the development of the country.

This goal has been elaborated into twelve (12) categories of equality and participation. Whilst category two (2) calls for amongst other aspects the “substantial decentralization of all forms of government activity” which the Public Solicitor desires to happen, the primary category relied upon is four (4) category which highlights the;

“equalization of services in all parts of the country, and for every citizen to have equal access to legal processes and all services, governmental and otherwise, that are required for the fulfillment of his or her real needs and aspirations; …”

Background

 The Public Solicitor’s Office came into existence in 1958 under the then Law Department and currently the Department of Justice and Attorney General; in the territory of Papua New Guinea. This was and continues to be the recognition of democratic institutions of the world and people’s rights to fair hear hearing by the courts. Legal Aid at that time was provided only to accused persons charged with indictable or serious crimes before the Supreme Court at that time.

Following its inception, an informal arrangement was used to sort out people’s problems. Patrol Officers or District Officers were engaged initially to defend the great majority of cases and where legal problems are likely to arise on trial, an officer from the then Law Department was called upon to defend. At that time, there were only (4) other legal officers beside the Public Solicitor serving the whole country. Clearly, these were simply not enough to cope with the criminal cases alone. After 1961, the Office began to increase staff and branches were set up beginning with the Rabaul Office.

PUBLIC SOLICITOR’S OFFICE IN PNG

The Office is now an Institution established under Section 176 of the Constitution. The enabling legislation(s) are; Constitution Section 176(1), Section 156 establishing the Public Solicitor as the Legal Office, and Public Solicitor (Charges) Act (Chapter 366). Section 225 of the Constitution enhances the status of the Office and protects its against inadequate support from the State. That provision imposes on all Government bodies and agencies the duty to provide the Office with staff and facilities as may be required by the Public Solicitor to properly and conveniently carry out his duties and responsibilities.

From the date of independence in 1975 the Office has become constitutionally independent. From 1958 up to the present time which is 48 years, the Office continues to be under the auspicious of the Department of Justice and Attorney General. This is only in respect to the financial and manpower management aspects. In all its legal work the Office is not given any direction and the Public Solicitor is the only and final authority.

The Public Solicitor’s Office is a part of and constitutes the national justice administration in the country. Section 154 of the Constitution, states that the National Justice Administration consists of:

1)   National Judicial System which comprises the Supreme Court, the National Court, and other courts established by Parliament,

2)   Minister responsible for the National Justice Administration, and

3)   Three (3) Law Officers (Constitution Section 156) of Papua New Guinea are the Attorney General (appointed only if the Minister of Justice who is not a lawyer fully admitted to the practice of law under the Lawyers Act of 1986), Public Prosecutor and Public Solicitor.

Establishment of the Public Solicitor’s Office.

Section 176(2) states that the Public Solicitor shall be appointed by the Judicial and Legal Services Commission. The Public Solicitor is appointed by the Judicial and Legal Service Commission. His term of Office and the conditions of employment are determined by the Salaries and Remuneration Commission. In the performance of his functions under the Constitution, Section 176(5) states that the Public Solicitor is not subject to direction or control by any person or authority.

Functions of the Public Solicitor

Section 177(2) of the Constitution spells out the functions of the Public Solicitor. These are to provide legal aid, advice and assistance for persons in need of help by him, and in particular—

(a)     to provide legal assistance to a person in need of help by him who has been charged with an offence punishable by imprisonment for more than two years; and

(b)     notwithstanding the provisions of Section 176(5) (establishment of offices) he shall provide legal aid, advice and assistance to any person when directed to do so by the Supreme Court or the National Court; and

(c)     in his discretion in any matter, whether of a criminal or civil nature provided that such assistance shall be—

(i)      limited to advice and preparation of documents in any proceedings in respect of which an Act of the Parliament prohibits legal representation of any party to the proceedings; and

(ii)     granted in accordance with an order of priorities relative to the resources of the Public Solicitor laid down by an Act of the Parliament.

(3)     A person aggrieved by a refusal of the Public Solicitor to provide legal aid may apply to the Supreme Court or the National Court for a direction under Subsection (2)(b).

(4)     For the purposes of this section the need of a person is to be interpreted in relation to each particular case and, without limiting the generality of this expression, account shall be taken of the means of the person to meet the probable cost of obtaining alternative legal assistance, the availability of such assistance and the hardship which might result to the person if compelled to obtain legal assistance other than by the Public Solicitor.

(5)     An Act of Parliament may make provision for the Public Solicitor to make a reasonable charge for services provided by him to persons in need of his help whom he considers are able to make a contribution towards the cost of these services.  [Public Solicitors (charges) Act has been enacted).

(6)     An Act of the Parliament may confer, or may provide for the conferring of, additional functions, not inconsistent with the performance of the functions conferred by Subsections (1) and (2), on the Public Solicitor.

According to the Supreme Court’s interpretation of Section 177(1) and Section 177(2), per Constitutional Reference No. 1 of 1978 (s.19) [1978] PNGLR 345 it was held that;

“The Public Solicitor is neither part of the National Judicial System nor is he one of the State Services whose conduct the Ombudsman has jurisdiction to investigate under s.219(1)(a)(i) of the Constitution. Further, the Public Solicitor does not come within the description “other arm of governmental body” for the purposes of s.218(1)(a)(iii). He is not an “arm of the government”. Section 176(1) establishes that he is a creature of the people, not the Parliament (see at p.350). The Public Solicitor is intended to be independent in the exercise of his professional duties. He is, however, subject to the inherent power of the National Court to supervise his professional conduct as a lawyer.”

Ambiguity with Department of Justice and Attorney General

The Supreme Court’s interpretation of this Constitutional Reference, underpinned by the recommendation of the CPC Report and Section 177(1) of the Constitution makes the Public Solicitor’s Office a stand-alone Institution of the people. It becomes a friend to those who seek and are given legal aid by the Office and becomes an enemy to all others it opposes.

One issue which is arguable is whether or not the Public Solicitor is acting for the State or assisting isolated individual(s). Depending on how State agencies, Ministers of State, government employees, private sector organizations, groups of persons or individuals view the functions of the Public Solicitor, the Office performs the novel duties of assisting any one needing legal aid, advice, assistance and legal representation.

When acting to protect the constitutional rights of the people he is bound by the constitution to act against the parliament, government, act against the Minister for Justice or the Attorney General, Solicitor General or most obviously the Public Prosecutor.  If the legislature enacts a legislation that is contrary to the people’s constitutional rights such as the Vagrancy Act then it is his Constitutional duty to question the Parliament and the Government in the Supreme Court.

When the Minister for Justice supports the death penalty, should the Public Solicitor keep silent during the Department’s Divisional Heads’ meetings for fear that if he speaks out the resources allocated to his   Office would be cut? Presently, the Government amended the Attorney General’s Act forcing people to personally serve Notices to Attorney General or his Secretary.  Simple rural people in remotes places such as Obura-wonenara can not afford the costs to Port Moresby to do this except to rely on the advise, instruction and assistance of the Public Solicitor.  The National Court has interpreted this amendment to be at the extreme disadvantage of the poor Obura-wonenara man and his lawyer, the Public Solicitor. 

Honorable Minsiter, be informed that I intend to seek a Constitutional reference to the Supreme Court, in this actual case from Ombuna-wonenara, Eastern Highlands Province. These situations and others given below suggest ambiguity with the current arrangement whereby the Public Solicitor appears as a Division of the Department of Justice and Attorney General.

The Public Solicitor believes this misunderstanding and miss-interpretation of the functions of his Office has resulted in inadequate resources allocated to his Office and recently the lack of recognition under the Revised Australian Enhanced Cooperation Program which you vigorously supported as Police Minister.  

In recent times Papua New Guineans have become very litigious when they feel aggrieved. They have become increasingly aware of their Constitutional rights and the need to be treated fairly under any laws of the country.

Given the wide mandate given to the Public Solicitor’s Office, it acts against the people when it defends alleged offenders on criminal matters. In civil matters the Office acts against government, government agents, individuals, private sector organizations and the State and often resulting in the increase of its liabilities.

Law and order is a concern for Papua New Guinea. The Australian government has provided a lot of financial and human resource aid to the country towards addressing the law and order challenges. In the last three years it devised a new approach, through the Enhanced Cooperation Program (ECP) to hone in and focus on specific challenges faced by the Law and Justice Sector Agencies.

While the government is endeavoring to address the law and order challenges, it is the Public Solicitor’s duty to defend the alleged criminals. The Public Prosecutor’s Office which is a Division of the Department, with the support from the Police Department are putting all their resources towards apprehending the alleged criminals, putting them through speedy court trials for convictions and finally seeking sentences of long imprisonment terms including death penalties.

However, another Division of the Department, the Public Solicitor’s Office is obliged to ensure the principles of natural justice and human rights given by the Constitution are accorded to the alleged criminals. He defends them, ensures their rights are not taken away, they get minimum sentences or go free. On the other hand the victims of crime and the community at large would want these alleged criminals to be locked away. It is presumed that by doing this the law and order challenges will be minimized and the community will become much safer.

When alleged criminals are set free or given higher penalties by the Court, the victims of crime and the community would become angry and unhappy. The question then becomes obvious. Why should the State adequately resource the Public Solicitor’s Office when it is defending the criminals, setting them free and in so doing increasing the level of crime while all the State’s efforts through the Police and Public Prosecutor office, are put towards minimizing crime and corruption in the country.

A similar scenario confronts the Office when legal aid is sought to bring claims against the State. The government through the Solicitor General’s Office which is a Division of the Department is acting vigorously towards minimizing liabilities against the State. While the Public Solicitor is assisting ordinary poor people put claims against the State as is the case for the person from Ombuna-waninera.  The Public Solicitor as the member of the National Coordination Mechanism (NCM) supports the objective to minimize these liabilities against the State.  However he can not constitutionally ignore people seeking his assistance to pursue claims against the State which may consequently result in increasing State liabilities.

This apparently would not go down well with those directly involved in seeking to reduce the liabilities against the State. Scenarios such as this contribute to the confusion, misunderstanding and misconception of the role and functions of the Public Solicitor within the justice system. Such misconception may ultimately result in adverse decisions against the Public Solicitor in terms of necessary support and resources.

Operations

The Public Solicitor’s Office currently has thirty (31) lawyers.  The general public’s perception is that these lawyers are defenders only of the alleged criminals. However, the functions of the Public Solicitor are only of being a public defender of largely urban criminal matters. The provision of Legal Aid includes civil matters as well. These cases fall under the categories listed below;

1. Cases mainly from police brutality, illegal police raids, and destruction of property in villages and settlements
2. Dismissals of public servants or unfair treatment of State employees
3. Negligent cases mainly for motor vehicle accidents or work places
4. Medical negligence by doctors and/or public hospitals
5. Workers compensation for both public and private sector employees
6. Commercial cases
7. Land dispute cases
8. Matrimonial Divorce cases
9. Matrimonial Maintenance cases
10. Infant Settlement (custody and maintenance of children)

These cases are against either the State, State organizations such as Health and Education Departments employees from the National Judicial Staff Services, or even the private companies. The Office has also successfully sought Constitutional References against government initiated legislation which infringed the people’s Constitutional rights. 

When major civil cases are involved and winning against the State is presumed to be obvious or when litigants have the money those aggrieved will pay to go to private law firms for speedy court responses. Even after going to private law firms, some of these people eventually return to the Public Solicitor’s Office for various reasons such as, (too high legal fees, the private lawyer has been deregistered by the Law Society, lack of trust on that legal firm, it took too long to deal with the case, the lawyer was paid but is still wanting for more money before taking up the case or the client’s file has been lost.) These instances are conclusive indications of trust and confidence in the Public Solicitor’s Office to assist people.

Support for severance from the Department

During the Department’s Divisional Managers’ meeting on 23^rd August 2005, the Minister for Justice Honorable Mark Maipakai, MP, endorsed the Department’s plan to separate the budget for Papua New Guinea’s three Legal Offices.

The three Legal Offices are the Attorney General, Public Solicitor and the Public Prosecutor under Section 154 of Constitution. The endorsement followed the advice from the Acting Secretary and Attorney General, Mr. Fred Tomo that, initiative has been taken through the Law and Justice Sector Program to have a reports done on the possibilities of separating the budgets for the three Constitutional Legal Offices.  The Reports should determine whether or not separation from the Department is a viable option.

On the following day 24^th August 2005, the Post Courier indicated that the Australian Foreign Minister, Honorable Alexander Downer, MP, suggested that the Enhanced Cooperation Program (ECP) should contribute towards ensuring that the Constitutional Offices in Papua New Guinea become truly independent.

Decentralization of Public Solicitor’s Functions

The second Goal and Directive Principle declares in part that the Office of the Public Solicitor should constitutionally ensure that it decentralize its legal services and processes to all the provinces. Under the Organic Law on Provincial and Local Level Governments the functions are understandably not decentralized because of its constitutional independence. However the decentralization of its management and administrative responsibilities to the provincial Public Solicitor’s Offices services would assure greater accessibility to the Legal Aid Services.

After thirty (30) years of independence the Public Solicitor believes the functions under Section 177(2) of the Constitution have not been satisfactorily realized. This belief is attributed to a number of factors summarized below;

1. The Public Solicitor’s administrative responsibility over financial and personnel management matters continues to be under the Department of Justice and Attorney General. The Public Solicitor does not have the power nor the capacity to freely direct resources  to meet his priority requirements.
   

2. In the last thirty (30) years the Public Solicitor has been able to open only seven (7) provincial offices outside of the National Capital District.
   

3. There are still backlog of criminal cases to be defended by the Public Solicitor’s Office.
   

4.  Many accused persons are held in custody beyond the statutory required time frames due to the inability of the Public Solicitor to defend them or delays in scheduling court circuits to certain provinces or locations.

5.  Many more civil cases are being turned away from the Office due lack of lawyers and financial resources.

6.  Outside of the criminal case load responsibilities, many ordinary people do not have access to legal aid especially in civil cases in fourteen provinces because there are no offices nor lawyers and other resources.

Decisions to grant or refuse Leal Aid are constrained by a number of factors, which include availability of lawyers, competency of lawyers to deal with certain cases, availability of basic administrative resource, availability or convenience to use legal resource material, inadequate funding, lack of vehicles in all provincial offices, and lack of basic stationeries on office equipment in all branch offices.

Agency Mission, Vision and Values

The Public Solicitor’s Office shares the Department of Justice and Attorney General’s Mission which is “to deliver excellent legal and justice services to the State and the people of Papua new Guinea”. Placing emphases on excellent delivery of legal and justice services is a major challenge for the Department but more so for the lawyers in the Public Solicitor’s Office.

Indeed the primary and only task of the Public Solicitor’s Office is the delivery of legal and justice services to those who can not afford the costs of private lawyers. To enhance the achievement of this Mission, the Department’s Corporate Plan sets as its goal number three (3) “to provide timely, available and accessible legal assistance to the public” and through the Public Solicitor.

The Public Solicitor is therefore expected to improve the quality and accessibility of legal aid services and advice to the public. His second objective under the Corporate Plan is to strengthen the administrative management of the independent office of the Public Solicitor. Achieving these two objectives during the 2005 fiscal year was a challenge and continues to be a challenge in 2006. On the same token, it was rewarding to acknowledge that the government’s resourcing of the Office did enable it to provide legal and justice services to many ordinary people throughout Papua New Guinea.

In the 2005 recurrent budget document the Public Solicitor’s Office was allocated the following resources; an operating budget of K2,445,600.00 and staffing of 4 - a manager and 3 administration officers. There were no labourers and no vehicles. However the Department of Personnel Management had approved a staff ceiling of 51 positions and the Department did recruited and filled almost all those positions.

Report on Operations

In 1994 the Office had 67 established position of which 48 were for Legal Officers and 19 for Support Staff. The staff ceiling was reduced by 7 positions to bring it to 54 in 1995. This was approved in by the Department of Personnel Management.  A further reduction was made in 1998 bringing the ceiling to 41. This situation improved in 2000 when the Department restructured the organization and increased the ceiling of the Office to 50 positions.

However the trend clearly indicates that the staff ceiling for the Office has decreased over the years commencing in 1995. Our efforts towards increasing the staff ceiling especially for lawyers to its 1994 level and more, has been met with minimum success only in 2000.  The office requires at least 60 lawyers for the whole country.

By the end of 2005 fiscal year there were 31 lawyers on strength, 17 support staff and 4 funded vacancies only for lawyers’ positions. The current location of staff is indicated on the table below.

In my assessment the staffing tables above suggest that out of the 31 lawyers, there are the following levels of legal experience.

• 17 lawyers or 54.8% with 5 years or less
• 5 lawyers or 16.1% with 7-10 years experience
• 4 lawyers or 12.9% with between 10 and 12 years experience
• 4 lawyers or 12.9% with between 14 and 22 years experience

There are many complicated criminal and civil cases but despite the varied levels of experience these lawyers are all expected to take on cases without this prejudice. To ensure there is some degree of separation between the legal and civil work, lawyers’ arrangement was done accordingly. However when National Courts go on circuits and lawyers get assigned to these circuits all the cases for that particular circuit irrespective or whether she or he is a civil or criminal lawyer, is expected to take carriage of all the Public Solicitor’s cases.

The current number of lawyers and location of Offices render it impractical to assign lawyers to do only criminal or civil cases. Assigning senior or more experienced lawyers to major or more complicated cases is also not possible. This scenario has resulted in the Public Solicitor refusing legal aid to some legally complicated civil cases.

Challenges

The challenges faced by the lawyers in the various provincial locations are very significant. They do not have adequate staff, office accommodations are either too small or require much renovation work. Some lawyers and support staff do not have houses or accommodation.

All the provincial Offices do not have Office vehicles which are an essential operational tool to conduct interviews particularly with prisoners or offenders in custody. The majority of prisons in the provinces are outside of the major provincial centers such as; Bomana, Kerevat, Bihute, Lakiemata, Barawagi, Baisu, Bundira, Bui/Iebi, Beon, Giligili, Ningerum or Boram. Getting on Public Motor Vehicles (PMVs) is either not practical, time consuming or expensive for example in locations such as Kokopo to Kerevat prison, Kimbe to Lakiemata or Goroka to Kainantu prison. Despite these challenges the offices have performed well as shown by the case loads managed by the respective offices.

The 2006 budget document suggests that the Public Solicitor’s Office had three vehicles during 2005. These vehicles were to be maintained by the Department during the 2006 fiscal year. However in reality, only one vehicle was bought for the Headquarters Office towards the end of 2005.

The current financial process for procuring goods and services is not conducive to meet the provincial offices immediate operational needs and requirements. Rather then meet the requirements of the provincial offices this current financial arrangement has forever been the source of frustrations in the prompt and effective response to the provincial offices’ needs and requirements and subsequently contributed to the delays in the delivery of legal aid services to the public.

For example when provincial offices require office stationeries, office equipment, and consumables, they are required to obtain the necessary quotes and invoices and send these to the Public Solicitor’s Head Office at Boroko, Garden City. The Public Solicitor then seeks confirmation by the Finance Division, of the Department of Justice and Attorney General, on the availability of funds under that particular budget item. Once the availability of funding is confirmed the Public solicitor then raises the necessary requisitions to meet the payment for the items requested.

The requisitions are then driven from Boroko to Waigani for the cheques to be raised. Depending on the availability of funds and staff in the Finance Division the processing of cheques would take about a week. The cheque would then be collected from Waigani and then driven to Boroko and from there posted by express mail to the Provincial Public Solicitor’s Office. It takes approximately three or four days for the cheque to reach the provincial office. When the cheque is received it is then taken to the supplier who then releases the goods. These Offices do not have office vehicles and therefore are expected to jump on Public Motor Vehicles (PMVs) at their own expense to collect the goods for the office.

Statistics on Legal Aid Applications

Collecting and collating statistics for the Public Solicitor’s legal work is one of the challenges faced by the Office.  Any presentation of the current data might not be fully understood nor appreciated. In locations where National Court goes on circuits and we do not have Offices; at the end of the circuits criminal and civil files are locked away in the District court houses because the Department advises that it does not have funds to airfreight files.

Every working day there are people waiting in queue to see and talk to a lawyer in the Public Solicitor’s Office whether it be at Boroko or in any of the other seven (7) provincial locations. If anyone visits the Garden City Public Solicitor’s Office at Boroko, during a working day especially in the mornings they would see a lot of clients waiting to be served.

It is a similar scene one observes when visiting a public hospital or clinic where sick patients sit quietly in queue hoping for a nurse or a doctor to serve them and treat their illness. These are ordinary people who could not afford private clinics or private doctors and similarly it is the simple ordinary Papua New Guineans who come to the Public Solicitor’s Office seeking legal attention and aid.

Each of the 31 lawyers is expected to manage their own caseloads, which on average for a month would comprise some 25 criminal cases, 28 legal aid cases and the bulk of pending files, plus research and prepare arguments for court, then appearing and arguing in the court rooms. Public Solicitor’s lawyers leave their offices at 9:00am for court room appearances at 9:30am each working day. They then return to their offices at 12:00 noon and leave again at 12:45pm for courts’ resumptions at 1:00pm and finally for the day, return to the office at 4:30pm.

The majority of lawyers are expected to travel away from their locations on previously three weeks circuits and this year two weeks. Within one (1) week of returning from the circuits they are expected to prepare and submit to the Public Solicitor the following reports; individual case, monthly report and general circuit reports. They are then expected to prepare and travel for the following month’s circuit. These lawyers also spend considerable time talking to their clients in order to get proper instructions, visit alleged offenders or prisoners in gaols, and making urgent applications for instance bail or restraining orders. 

They do not have much time to take on other administrative tasks. Endeavouring to compile data and forward statistics to the headquarters is therefore challenging to most of the lawyers but the Public Solicitor has recognised this as an issue which has to be addressed quickly.

Staff Movements

During 1995 two lawyers resigned and a casual in Lae was retrenched and subsequently passed away. Another casual at headquarters passed away after a short illness. The two senior lawyers resigned for personal reasons. Mr John Kaumi was the Solicitor In-Charge of Kokopo Office and his resignation led to the appointment of Mr. Luke Simiji as the Acting Solicitor In-Charge. In the Wabag Office, Mr. Paul N’Dranoh was the Solicitor In-Charge. When he resigned Mr. George Korei was appointed as Acting Solicitor In-Charge.

Significant issues affecting the Public Solicitor’s Office

Though the 2005 data indicates the volume outputs were significant from the budget resources allocated to the Office, much more could have been done had the Office become truly independent. The Office is independent only to the extent of delivering its legal aid work.

Administratively the Office continues to be under the auspicious of the Department of Justice and Attorney General. This relationship is an impediment to the full and adequate resourcing to the Office as well as the proper understanding of the true nature and the role and functions of the Office to that of the Department of Justice and Attorney General. Had there been full resourcing to the Office of the Public Solicitor the legal aid delivery would have been significantly higher and widely spread across the 20 provinces of the country.

The ”Constitutional Planning Committee Report” (CPC Report) wanted the Public Solicitor’s Office to be independent in every sense of the meaning. Those intentions are well imbedded under Section 176(1) of Papua New Guinea’s national “Constitution” establishing a constitutionally independent Public Solicitor’s Office. The Office is therefore an institution created by the Constitution for the people of Papua New Guinea. It was designed not to be under the government or any department but simply as an institution of the Constitution. The true and noble spirit of the Constitution for the Public Solicitor’s Office to be independent has not been fully realized even after 30 years of independence.

Section 225 of the Constitution directs the provision of facilities and states that;

“Without limiting the generality of any other provision of this Constitution, it is the duty of the national Government and of all other government bodies, and of all public office-holders and institutions, to ensure, as far as is within their respective legal powers, that all arrangements are made, staff and facilities provided and steps taken to enable and facilitate, as far as may reasonably be, the proper and convenient performance of the functions of all constitutional institutions and of the offices of all constitutional office-holders.”

Though Section 225 of the Constitution provides the opportunity to compel other government bodies to assist the Public Solicitor’s Office, this has not been taken as an easy way out to secure the necessary resources. The Basic Social Obligations under the Preamble of the Constitution has restrained and constrained the Public Solicitor from resorting to section 225 towards securing the required resources to perform his constitutional duties and responsibilities. Of the ten (10) basic obligations declared under the Preamble, the Public Solicitor has;

1. Respected and acted in the best interest and spirit of the Constitution
   

2. Not resorted towards enforcing Section 225 of the Constitution to utilize administrative opportunities made available to him under it for full participation in the government of the country.
   

3. Respected the rights and freedoms of other government bodies, and cooperated fully in the interest of inter-dependence and solidarity of government machinery.

The basic obligation to protect the Constitution and responsibly perform up to the expectations of a Constitutional Office-Holder has been a significant deterrent against the full discharge, of the functions of the Public Solicitor’s Office.  The responsible attitude of the Public Solicitor has compelled him not to pursue any legal or constitutional recourse to achieve the combined effect of the following sections of the Constitutions;

1. National Goals and Directive Principles
2. Basic Social Obligations
3. Section 176                     –        The establishment of Public Solicitor’s Office

4. Section 177(2)      –        Functions and responsibilities of Public Solicitor

5. Section 156(1)(c )          –        Public Solicitor as a Law Officer
6. Section 225                    –        Compelling government bodies to assist

Constitutional Offices

This responsible and yet complacent attitude has not been useful to both the Office of the Public Solicitor and the Department of Justice and the Attorney General. Seeking to find alternative ways of discarding this administrative complacency does indicate positive attitudes towards realigning the administrative mechanism of the Department of Justice and Attorney General.

It is inconsistent and not in the true spirit of the Constitution for the Public Solicitor’s Office and the Public Solicitor himself to be under the umbrella of the Department of Justice and Attorney General or any State entity for that matter. The Constitution has designed this Office to be a stand-alone people’s institution similar to the Ombudsman Commission, the Magisterial Service or the national Judiciary. There are no laws requiring the Public Solicitor or his Office to be under any government Department or a State body.

The current administrative arrangement is a pre-independence colonial legacy reinforced by post-independence National Executive Council’s (NEC) decisions through the Prime Minister’s delegation of political and administrative functional responsibilities to the Minister for Justice. That is the only source of administrative authority over the Public Solicitor.

Over the years the Minister for Justice’s delegated and gazetted Ministerial responsibilities include the Department of Justice and Attorney General, the Judicial and Legal Service Commission (JLSC), Supreme and National Courts, Magisterial Service, Legal Training Institute and the Public Solicitor’s Office.

Why has it not been possible for the Department to facilitate the financial severance of the Public Solicitor’s Office as it has done for the Judiciary, Magisterial Service and the Legal Training Institute? These three institutions did constituted the Department of Justice and Attorney General and over time were severed from the Department simply by the allocation of an agency cost code by the Department of Treasury. No reports or Submissions to the National Executive Council or even enactment of legislation were required.

At the outset of the national constitution it is directed that all government bodies work together and assist each other towards fully implementing the National Goals and Directive Principles. Section 25 of the Constitution enables a direction for the implementation of the National Goals and Directive Principles whilst section 225(2) makes it precisely the “duty of all government bodies to apply and give effect to them as far as lies within their respective powers.”

Section 176(5) is very specific in that the Public Solicitor is not subject to direction or control by any person or authority except by the Supreme and National Courts. There continues to be the miss-interpretation that the absence of a separate budget renders the Public Solicitor being subservient and subject to the control and direction possibly by the Department of Justice and Attorney General and ultimately the executive government.


This assumption is not designed but is a consequential conclusion of the current administrative arrangement and inadequate resourcing to the Office. It is a default conclusion resulting from the lack of budgetary and administrative empowerment. Limiting the funding to this Office simply incapacitates it from providing full legal aid and defending its clients with all available resources.

Positive Outputs

1.       Though there continues to be the issue of rendering sufficient resources to the Office of the Public Solicitor the data indicates the performance levels to be satisfactory. Despite the administrative short comings and the challenges highlighted above, the Department of Justice and Attorney General has been very supportive to the Office.

2.       Of all the Divisions within the Department of Justice and Attorney General, the Public Solicitor’s Office was allocated the highest level of funding under the 2006 recurrent budget to the Department. Despite the low staffing figures given in the budget document, the Department supported and facilitated the engagement of personnel to the maximum level possible and within the staff ceiling approved by the Department of Personnel Management (51).

3.       For many years the lawyers were arguing for increases in certain allowance under their respective Employment contracts. It was an issue that affected the moral of lawyers and in 2005 the Department managed to secure funding and did satisfactorily address this issue.

4.       Through the Department’s support one lawyer completed his overseas studies in Melbourne with a Master degree in Law and another two are on study leave, doing Masters degree in Australia.

5.       During the 2005 the Australian government through its AusAid program, commissioned Ms Karen Shepard from the Melbourne Legal Aid Office to do a report on the provision of Legal Aid Services by the PNG Public Solicitor’s Office. This report was satisfactorily completed and contained 99 recommendations for implementation. The Public Solicitor presented the Report to the Secretary and Attorney General in November of 2005.

6.       The Law and Justice Sector Program further funded Mr. Chris Roper’s travel from Melbourne to the country to look at the Kerran’s Report, prioritise the 99 recommendations and draw up an implementation strategy.

7.       The Department further supported the Public Solicitor’s proposals fro the improvement of the Office. It made submissions to the National Coordination Mechanism (NCM) which then approved seven (7) activities for funding under the L&JSP. The activities are as follows;

• Rationalization studies on cost-effective separation of the Public Solicitor’s Office K120,000.00.
• Improving Administrative management of the Office K37,000.00.
• Improving Information Storage and Management with actual funding yet to be decided.
• Development of Public Solicitor’s Legal Handbook K80,000.00.
• Improved Capacity to Legal Aid Service Delivery again funding was yet to be decided.
• Education and Awareness Program on the Roles and Responsibilities of Public Solicitor again funding was yet to be decided.
• Program Management K43,000.00. 
  

• An Office Manageress was recruited under the L&JSP to assist with the management of the Office monitoring the expenditure as well as the implementation of the various activities listed above.
  

Total Funding under the L&JSP for 2005 was over K280,000.00 and continues to be maintained for 2006.

8.       The L&JSP further assisted with the redesigning of renovation and re-partitioning of the Public Solicitor’s Office accommodation at Boroko Garden City). Actual work commenced in December 2005 with the funding met directly by the L&JSP.  This renovation work should be completed in May 2006.

9.       Assistance from the Department facilitated the drawing up and finalization of Public Solicitor’s Work Plan for 2006 to 2007. This work plan is consistent with the Department’s Corporate Plan.

Issues for 2006 Fiscal Year

Providing timely, available and accessible legal assistance to the public continues to be a challenge for 2006. It is our constitutional duty to provide legal assistance quickly and to as many unfortunate people as possible. There are many issues confronting prompt and efficient delivery of legal aid services and the management of the Public Solicitor’s Office but could be summarized as follows;

1.       The main challenge is to obtain case-load data from individual lawyers. Obtaining the relevant data on the status of each and all the cases being dealt with by each and all the lawyers in the Office is necessary for two basic reasons. Firstly, these reports assist towards identifying areas of weakness where a lawyer might require support so that we all could provide the best legal assistance to our individual clients.

Secondly, data is a management tool for resource allocation. For example, if an office is overburdened with criminal or civil cases then a lawyer could be temporarily reassigned to assist in a particular location, or deciding the priority of allocation of resources.

2.       The second challenge is the monitoring of the Office’s 2006 budget expenditure. It was realized in 2005 that we have not given much attention towards monitoring the monthly and quarterly expenditures incurred by the Office. This administrative omission has been to the detriment to the operations of the Office.

As a Constitutional Office Holder it is incumbent upon the Public Solicitor to ensure a financially transparent administrative operation and be held accountable for the funding and other resources allocated to the Office.

Though the Departmental Head is the Chief Accountable Office for the budget appropriation, the Public Solicitor has an equal administrative duty as well as legally compelled under “Section 19 of the Organic Law on Certain Constitutional Office Holders,” to ensure all the State resources are utilized towards delivering the best performance and achieving the maximum good.

3.       The third issue for 2006 is to seek empowerment and enablement to draw up the Public Solicitor’s 2007 recurrent budget estimate and forward it directly to the relevant authorities such as the Departments of Treasury and Finance and the Central Agencies Coordination Committee (CACC). With the support and assistance from yourself as Minister for Justice and the Department of Justice and Attorney General I are confident this could be done for the 2007 budget. Monitoring of monthly expenditure levels for 2006 would provide the basses for estimating the 2007 budget.

4.       Our next issue is the implementation of the L&JSP activities. The approval of seven activities is very much appreciated. These activities need to be implemented quickly and funds drawn down at a quicker pace. Recruiting Short Term Advisors (STA) need to be undertaken quickly with positive outputs delivered by the end of 2006.

We acknowledge that most of the officers in the Office are lawyers who are at the same time managing huge volumes of cases some of which are beyond their capacity. It is a major task for each and all of them. They therefore could not be expected to oversee the implementation of these L&JSP activities but some are being involved through the establishment of relevant committees to assure of their involvement. It is further acknowledge that the administrative management experience is inadequate to; manage the L&JSP activities, the recurrent budget, supervise the operations, and ensure the core business of the Office is delivered in a timely, available and accessible manner.

5.       One of the activities under the L&JSP is the delivery of accessible legal aid. It is our desire to have this project commence in one of the provinces this year. This is a significant challenge to the Office because of the involvement of a Short Term Advisor (STA) who needs to be engaged, the relevant provincial government, churches and other non-government organizations and provincial administration officers in the districts. The focus of this project is to go out to the districts and local communities and provide the legal aid, rather then being in the office at the provincial center and waiting for clients to search out and then request legal aid.

A public seminar needs to be organized, para-legal officers need to be recruited and trained and a para-legal handbook done to assist and guide both the potential clients and the trained para-legal personnel.

6.       Under the revised Enhanced Cooperation Program (ECP) no support was given to the Public Solicitor’s Office. The Judiciary of Papua New Guinea has been earmarked to get four Judges plus a Deputy Registrar whilst the other legal divisions in the Department of Justice and Attorney General comprising the Public Prosecutor’s Office, Solicitor General’s Office, State Solicitor and the Executive Branch were given a total of nine (9) Australian lawyers. Except for the Public Solicitor’s Office all other Divisions of the Department were given personnel assistance under the ECP.

The Office of the Public Solicitor requested four (4) lawyers under the initial and the revised ECP. This request was never considered because no assistance to the Office of the Public Solicitor was featured under the whole ECP. The relevant PNG authorities were fully aware of the imbalance on the recruitment of Australian Lawyers as well as the request made by the Public Solicitor.

The failure of the Department to positively address this request appears to be inconsistent with the obligation under Section 225 of the Constitution.

It would be a misconception to think that in-order to reduce the increase in crimes and reduce the amount of liabilities against the State, any agencies or bodies that are seen to be assisting with the defense of those allegedly involved in crimes or assisting in the increase of State liabilities, are denied fair and equal resources.

These are significant challenges but they will not overshadow our commitment to the Department’s Mission statement by fulfilling the Public Solicitor’s objectives of improving the quality and accessibility of legal aid services and advice to the public and strengthening the administrative management of the independent office of the Public Solicitor.
 

Financial reports  

It has been highlighted that the management of the budget is one of the challenges faced by the Public Solicitor’s Office. Lack of monitoring coupled with uninformative expenditure reports resulted in K92,654.00 having to be returned to the Treasury Department in late December of 2005. In the mean time all the provincial offices continue to suffer the lack of basic operational resources such as office stationeries, lack of office vehicles, broken down computers and photo-copiers and unhygienic office environment.

Public Solicitor’s Budget

However, on the whole the Office managed well by utilizing most of its 2005 recurrent budget.

Legal Aid Fees

Lastly, but most significantly Honourable Minister, you should be informed of the Public Solicitor’s Trust Account. The Public Solicitor (Charges) Act authorizes fees for legal aid services to be imposed. This provision has been utilized from time to time by the imposition of fees on legal aid applications. Legal costs are also charged on claims especially against Motor Vehicle Insurance Limited. Monies receipted are paid into consolidated revenue and the Public Solicitor’s Trust Account.

At present the Trust Account has a balance of K468,052.93 as of 31^st January 2006. The interests accruing are paid directly by the Bank to the PNG Law Society.

As a nonprofit making body, it is the Public Solicitor’s intention to seek out every possible means to secure an exemption from the requirement to remit interests from its Trust Account to the Law Society.  It is requested that you take the appropriate action to amend the relevant legislation to be consistent with the Trust Instrument I have from the Department of Finance.