The Public Solicitor and the Public Solicitor s Office in Papua New Guinea

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1 OFFICE OF THE PUBLIC SOLICITOR The Public Solicitor and the Public Solicitor s Office in Papua New Guinea RISING TO MEET THE IMPETUS OF DEVELOPING CIRCUMSTANCES AND ENTRENCHING INDEPENDENCE IN THE PUBLIC SOLICITOR AS A CONSTITUTIONAL OFFICE-HOLDER AND ESTABLISHING THE PUBLIC SOLICITOR S OFFICE AS AN INDEPENDENT CONSTITUTIONAL INSTITUTION INTRODUCTION A Country Report presented at the.. PILON Conference, Brisbane December 2010 by FRAZER SAPULAI PITPIT PUBLIC SOLICITOR OF PAPUA NEW GUINEA The Public Solicitor, since 16 September 1975, has been a Constitutional Office-holder. A Constitutional Office-holder is independent from any direction or control from any person. The Public Solicitor enjoys the same independence as a Judge or an Ombudsman. The appointment of the Public Solicitor is also made by an independent Constitutional body, the Judicial and Legal Services Commission, the same body that appoints Judges, the Chief Magistrate, the Secretary of the National Judicial Staff Service and the Public Prosecutor. The office that the Public Solicitor occupies is therefore one of the highest independent offices in Papua New Guinea. The Public Solicitor s Office (PSO) is the organization that has been created to facilitate and perform the powers and functions of the Public Solicitor. These powers and functions are delegated by the Public Solicitor to the officers employed by the Public Solicitor s Office. That is why the PSO is an Independent Constitutional Institution created by the Constitution of Papua New Guinea.

2 2 Though the Public Solicitor and the PSO became constitutionally entrenched in 1975, the PSO never had complete administrative independence until The challenges and constraints arising from a relationship of convenience, with the Department of Justice and Attorney-General, fermented the gradual severance of the umbilical cord with the host department. It is now a constitutionally and administratively vibrant independent entity. Building on the experiences on hand, and the impetus generated from the country s Vision 2050 it is now forging expansion relationships to diversify its core business, as well as enable access to its services in all the provinces and the 89 districts in the country by This paper discusses the long distance the Public Solicitor s Office has taken to reach the complete independence that the Constitution desired. It is also important to understand the constraints and challenges experienced in that journey. HISTORICAL BACKGROUND The early years The Public Solicitor s Office commenced operations in 1958 under the then Law Department in the Territory of Papua and New Guinea. Since Independence this Department has changed names according to its configurations at those relevant times: from the Law Department to Justice Department and currently the Department of Justice and Attorney-General (DJAG). The establishment of the PSO was in recognition of the democratic institutions of the world and People s right to fair and just hearings by the courts. In the beginning Legal Aid was provided only to accused persons charged with indictable offences before the Supreme Court. The PSO evolved from a beginning where 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. Where legal problems were likely to arise on trial, an officer from the then Law Department was called upon to defend. At that time, there were only four 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.

3 Vision of the Constitutional Planning Committee 3 In the Final Report of the Constitutional Planning Committee (CPC) on the drafting of the Constitution, it recommended there be established an independent Public Solicitor s Office in the country. According to the CPC the primary task for this Office is to assist the majority of the people who cannot afford private legal representation or cannot afford to pay legal fees. The Report stated that: No-one should be denied legal assistance by reason of his financial circumstances or the fact that he or she is unable to establish contact with persons of authority or influence. Law Courts we believe should be available to all persons, not just persons who have money..therefore recommended that the Public Solicitor should be provided with adequate qualified and supporting staff and facilities. Constitutional perspective in service delivery The Public Solicitor s Office did not only get entrenched in the Constitution when the country gained Independence in The National Goals and Directive Principles set another benchmark which guides the progress of this Office. This benchmark is identified with the second goal declaring all Papua New Guineans to have equal opportunity to participate in, and benefit from, the development of their country and calls for: substantial decentralization of all forms of government activity; and 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; Today the National Goals and Directive Principles and the Constitutional establishment of the Office, both underpin the discharge of the duties and responsibilities of the Public Solicitor s Office. Under the Constitution, the Public Solicitor has a wide scope of powers to provide legal aid and assistance to the People. The Office was established not to be the solicitors or defenders of only the alleged criminals. It is also tasked with providing legal aid, assistance and advice on civil cases. Although Section 177(2) of the Constitution spells out the functions of the Public Solicitor, there are other duties the Office is expected to perform such as bringing legal aid as close as possible to the people, represent people

4 4 whose human rights have been deprived and bringing constitutional references to the Supreme Court. FUNCTIONS OF THE PUBLIC SOLICITOR The functions of the Public Solicitor are spelt out in the Constitution but one must read beyond the written word to understand the meaning, appreciate the intentions and walk the direction, towards a vision of a brighter future for all. Core provisions in providing legal aid Constitution Sections 177(2) spells out the functions of the Public Solicitor. It states: The functions of the Public Solicitor are to provide legal aid, advice and assistance for persons in need of help by him, and in particular (a) (b) (c) 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 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 In his discretion in any matter, whether of a criminal or civil nature provided that such assistance shall be (i) (ii) 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 Granted in accordance with an order of priorities relative to the resources of the Public Solicitor laid down by an Act of the Parliament. This provision, particularly Subsection 177(2)(a), is further amplified by Sections 37(4)(e) (protection of the law) and 42(2)(b) and (c) (liberty of the person) of the Constitution. Section 37(4)(e) states: A person charged with an offence shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of

5 5 his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law; and Sections 42(2)(b) and (c) states: (2) A person who is arrested or detained (b) (c) shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained, and shall be informed immediately on his arrest or detention of his rights under this subsection. Functions as a Law Officer The Public Solicitor, as the Independent Constitutional Office-holder also constitutes the National Justice Administration in the country. According to Section 154 of the Constitution, the National Justice Administration consists of: (1) Supreme Court, the National Court, and other courts established by Parliament; (2) Minister responsible for the National Justice Administration; and (3) Law Officers (Constitution Section 156) of Papua New Guinea who are: the Attorney-General (appointed only if the Minister of Justice is not a lawyer fully admitted to practice law under the Lawyers Act of 1986); Public Prosecutor; and Public Solicitor. The three Law Officers are significant Constitutional Office-holders. Prior to the separation, these administratively constituted one Department. That combination was therefore more of an inhibition rather than an advantage, which would have been of benefit to the whole Department and the country. This is evident when we consider the functions that the Public Solicitor has as a Law Officer.

6 6 To give effect and more emphasis to the functions of the Public Solicitor as defined under Section 177(2)(c) of the Constitution, the law gives the Public Solicitor, as a Law Officer, the power to enforce the rights and freedoms guaranteed under the Constitution. That power is conferred by virtue of Section 57 of the Constitution. The Public Solicitor is also one of the few officers, as a Law Officer, allowed by the Constitution (Section 19(3)(c)) to apply to the Supreme Court to give its binding opinion on any question relating to the interpretation or application of any provision of a Constitutional Law, including (but without limiting the generality of that expression) any question as to the validity of a law or proposed law. In that regard, the Pubic Solicitor is part of the team of watchdogs over the constitutional and legal development of the country. As Section 19 indicates, this power is only given to independent constitutional office-holders of which the Public Solicitor is clearly one. A separation of these three Law Officers to be stand-alone institutions would increase the status and standing of the Secretary and Attorney-General as the Chief Legal Advisor to the NEC and the State. The Secretary and the Attorney-General could then call upon the Public Solicitor and Public Prosecutor for advice and support on issues which do not relate to the core business or court work of both Offices. That arrangement inhibited any sharing of legal opinions because any obvert assistance could give rise to public perception of overstepping or compromising the independence of the other. INDEPENDENCE OF THE PUBLIC SOLICITOR AND THE PUBLIC SOLICITOR S OFFICE The Supreme Court Reference No 1 of 1978 reaffirmed that Constitutional Independence and went further to declare that the Public Solicitor s Office is an institution for the People of Papua New Guinea. It is a creature of the Constitution and not an agency of the Government or a Division of a Government Department. In its interpretation of Section 176(1) and Section 177(2), the Supreme Court concluded: 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,

7 7 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. Although the PSO was constitutionally entrenched in 1975 it continued to be under the auspicious of DJAG up to the end of However this attachment was only in relation to financial management and manpower responsibilities. The PSO receives no directions, guidance or advice from the Department or anyone else in all legal work it does. The Public Solicitor is the sole and final authority who decides on which cases to assist, not to assist, how to legally assist clients and charge or not to charge fees under the Public Solicitor (Charges) Act. ROLES OF THE PUBLIC SOLICITOR An analysis of these functions brings to the fore the different roles that the Public Solicitor has. In a definitive interpretation there are four roles of the Public Solicitor: The first and most obvious role is to defend alleged serious criminal offenders in the Higher Courts. The second and third roles are intertwined in the civil jurisdiction where depending on the nature of the client s request the Public Solicitor would either: prosecute or defend civil cases in courts. It is the prosecution role of the Public Solicitor that is not so obvious but a role that demands serious attention. Most civil cases that are brought to the Public Solicitor are settled out of court such as those under the Motor Vehicle Insurance Limited (MVIL) arising from vehicle accidents. The fourth role is the giving of free and honest legal advice and assistance to clients. It enables clients an opportunity to decide whether to take the matters to courts or mediate a settlement. This role of the PSO does not prevent the clients from seeking legal advice and assistance from other lawyers or if they have the means to pay, engage other lawyers to take up their cases in courts.

8 GUIDED CONSTITUTIONAL INDEPENDENCE An agency in the Department of Justice & Attorney-General 8 Despite these constitutional prescriptions and the subsequent reinforcement by the Supreme Court, the PSO continued its administrative dependence on DJAG. The continued attachment to the Department constrained and compromised the full discharge of its constitutional duties and responsibilities. Budgetary attachment Although the Public Solicitor did have a budget, the yearly allocation up to 2008 reflected the aggregate appropriation to the Department. The Secretary of the Department therefore had the prerogative to shift funds and personnel in the best interests of the performance of the Department. That best interests was not necessarily that of the Public Solicitor s Office. It was the duty of the Departmental Head to ensure the Department was functioning well and on the whole was delivering the expected goods and services. Whether the Public Solicitor liked it or not, the Secretary did not have to consult him (Public Solicitor) when decisions had to be made to shift funds to meet outstanding operational costs or pay salaries or other entitlements. That administrative relationship through the budget attachment did not provide genuine authority to the Public Solicitor to set his own priorities, freely expend funds to perform his constitutional duties or make decisions on personnel to deliver legal aid, assistance and advice on his behalf. The absence of full authority to make decisions on funding and personnel inhibited the full potential of the Public Solicitor and the Public Solicitor s Office to perform the noble intentions of the Constitution to assist the ordinary People of the country. The budget documents prior to 2009 show the Public Solicitor s Office as having a budget appropriation for that particular fiscal year and staff as a division of the Department of Justice and Attorney-General. What is misleading is that this constitutional office never had complete authority over these resources. The budget and personnel were under the ultimate control of the Department and therefore controlled by the Head of the Department. The Public Solicitor was not the Chief Accountable Officer under the Public Finances (Management) Act. It then follows the Public Solicitor could not independently make decisions on the basis of his own

9 9 priorities. Though there were lawyers and support personnel employed in the Public Solicitor s Office they were not employees whom the Public Solicitor had independently recruited and could ultimately direct, control or disengage. Up to the end of 2008 the process for the recruitment and disengagement of personnel were under the Department of Justice and Attorney-General and this caused cumbersomeness, procrastination, delays and it was costly. No independent powers in financial and administrative matters In reality the Public Solicitor as a Constitutional Office-holder did not have any personnel including lawyers and no budget to work with. In other words, between 1975 to 2008, there was no Constitutional Office such as the Public Solicitor s Office. According to the Public Finances (Management) Act and the manner by which financial resources were allocated, the Public Solicitor did not have any funding for which he was able to freely make expenditure decisions. Similarly, under the Public Services (Management) Act the Public Solicitor did not have any staff. The lawyers and staff were ultimately the resource of the Department of Justice and Attorney-General. Impediments in Department of Justice and Attorney-General Both the Public Solicitor and the Departmental Head were aware of the challenges of managing a large organization. Embedded to managing a large organization are other constraints to decision-making that exist to the present day. The Department consisted of: three Constitutional Offices, Secretary and Attorney-General, Public Prosecutor and Public Solicitor; seven statutory organizations; six administrative Divisions, 16 component parts to a whole; and in that whole entity framework there is by inheritance through the Constitutional framework three Constitutional Law Officers. By the same token the Departmental Head for the Department of Justice and Attorney-General is required to perform and make decisions as the Chief Executive Officer of a government Department; a Constitutional Office-holder as a Law Officer; Member of Central Agencies Coordination Committee;

10 10 the Attorney-General of Papua New Guinea when the Minister for Justice is not a lawyer; and a lawyer. Similarly, the Minister for Justice has responsibilities over 110 legislations, has to attend to his State Ministerial duties and deliver goods and services to his electorate. To compound the administrative environment, the resources allocated to the Department were always limited and do not reflect the width and breadth of its functions and responsibilities. Operational decisions on how the resources are dispersed to the 16 branches had to be made to ensure the Department continued to function and deliver. These constraints to complete severance were acknowledged by the Department. When it restructured the Department, a recommendation was made to the PNG Department of Personnel Management to separate the Public Solicitor s Office to become completely independent. However, when the organizational restructure was approved that decision did not contain the desired separation. Challenges to full autonomy Setting the course for full autonomy had its own challenges. Having the experience of serving in one organization is one side of the coin and the other side of it is the knowledge of the administrative challenges entrenched in the two organizations; the Public Solicitor s Office and the Department of Justice and Attorney-General. Synergizing these challenges to arrive at the desired destination requires tactful maneuvering. Creating a conducive administrative environment to thrive on also requires tactfulness. Seeing the outputs from those initiatives does set the stage for the final assault the separation of the Public Solicitor s Office. Moving the mind sets of those whose administrative convictions had been entrenched was not going to be easy. Any initiatives to enhance performance or changes to the business norms that had always been prevalent was a threat to the complacency that existed. From the Public Solicitor s perspective it was obvious there was no capacity or the resources to become fully autonomous. Support, assistance and guidance from the Department were essential to facilitate an orderly successful separation. Becoming the Chief Accountable Officer under the

11 11 Public Finances (Management) Act for the management of a budget as well as managing the human resources were also issues that presented as challenges. INITIATIVES FOR FULL AUTONOMY Acknowledging the constraints and impediments as challenges was the next positive stage for full autonomy. It was imperative to establish alliances based on trust rather than based on quid pro quo. Having a firm cooperative partnership with DJAG resulted in taking advantage of the first window of opportunity. In December of 2004, the host Department cosponsored with the Public Solicitor a request to the Law and Justice Sector Program for a research study to be undertaken to identify short and long term needs of the PSO in order to improve performance. The long term alliance with the Law and Justice Sector through the committed membership of the National Coordination Mechanism (NCM), the Law and Justice Sector Secretariat, and AusAID all contributed towards a better understanding and appreciation of the predicaments the Office was facing. The Karen Sheppard Report The request was endorsed by the NCM in 2004 and by July of 2005 Karen Shepard completed her report. In the report Karen Sheppard highlighted numerous areas for improvements but tailored largely to the realignment of the legal processes for the expeditious delivery of Legal Aid. It did recommend some ways of improving the staff structure and staff performances plus some improvements to the administrative processes. The numerous good recommendations went beyond fulfilling the Terms of Reference and was politically correct but fell short of recommending complete separation of the Office. The significance of the Karen Shepard Report was that it had set the stage for the positive changes which followed. Under sponsorship of the host Department the NCM then endorsed another report to be done locally on the separation of the PSO from the Department. Within three months upon the release of the Karen Shepard Report the NCM further approved the engagement of another Short Term Advisor who simplified, separated and realigned the Karen Shepard Recommendations including placing emphasis on the immediate engagement of a separate

12 12 Practice Advisor who arrived in These alliances have started to give dividends. Preparation of annual reports, etc Whilst the Separation Report was still in progress, the PSO for the first time completed its own Mission, Vision and Values in support of its 2007Annual Plan. After a lapse of eight years the 2005 Annual Report was published and presented to the Minister for Justice which was then followed by the 2006, 2007 and 2008 Annual Reports and these were presented to Parliament. The 2009 Annual Report is currently in the process of being published. These annual reports combined with the publication of 2007 Annual Plan and the Corporate Plan reflected an increased capacity within the office in respect of planning and reporting and an increased awareness of the importance of monitoring and evaluating the office s performance. Most significantly these Annual Reports were a firm pronouncement to the Government and the People of Papua New Guinea that the Public Solicitor s Office has the capacity to receive public money, do the work the money is intended for, it is accountable, transparent and must be trusted to be given more resource so that it continues to deliver its services to the People. ACCOUNTABILITY IN PUBLIC SECTOR MANAGEMENT Own budget preparation and submission In June of 2006 the Public Solicitor submitted for the first time a full 2007 budget estimate to the Department of Justice and Attorney-General to embrace in its (Department) aggregate an estimate for the PSO. The important issue here is the development of a template for doing budget estimates for the years ahead. The PSO further submitted separate Project Formulation Documents (PFDs) to the Department for project activities which were to be under the sole responsibility of the Public Solicitor s Office to implement. Consistent with the Karen Shepard Recommendations the Law and Justice Sector funded the engagement of an Office Manager to support the Public Solicitor in his administrative tasks. These initiatives provided the impetus to continue the progress made thus far. The achievements were a further indication to the host Department and other skeptics that indeed the Public Solicitor s Office did have the ability

13 13 and when given the full capacity, the management acumen to manage a fully autonomous Constitutional Office. The Separation Report was published in August After analyzing the constraints and considering the challenges ahead and acknowledging the experiences of other agencies which were eventually separated from their initial sponsors the Separation Report made the primary recommendation for the severance to occur. This pragmatic report focused on why and how the severance could occur. More significantly the recommendations provided the processes of attaining full autonomy. The enabling legislation alluded to under Section 177(6) of the Constitution, was further recommended as being most appropriate under a fully independent status. To understand and appreciate the progress the Office has made since the receipt of the Separation Report, it is appropriate to relay the budgetary situation between 2005 and Embodied in the budget framework is the manpower establishment budget submission In 2007 the recurrent operation budget for the office was K3,581, which excluded wages and salaries administered by the Department of Justice and Attorney-General. The figure for 2006 was K2,831, The estimates for the 2005 and 2006 were done by the Department of Justice and Attorney-General. To establish a base for the calculation of the 2007 budget estimate two set of figures were obtained from the Department the appropriation for 2005 which was K2,445,600 and the actual expenditure of K2,738,720 as recorded under the Department s records. It was in April of 2006 when for the first time the Office commenced its 2007 budget estimates and hence based its calculations on the basis of the appropriation of K2,831,300, actual expenditure up to the end of April, and the projected expenditure to the end of the fiscal year. Although the personnel emoluments were still under the Department the estimated costs had to be embraced in the 2007 budget estimates. It is to be noted that the personnel emoluments component of the budget continued to be under the Department until the end of the 2008 fiscal year when this responsibility was granted through the 2009 budget appropriation.

14 14 ORGANIZATIONAL RESTRUCTURE To embrace the complete severance from the Department and to ensure there was capacity to manage the finances and personnel emoluments in 2008, the PSO had to restructure. The restructuring of the organization was done own its own initiative and without any support or guidance from the Department of Justice and Attorney-General. To ensure these components of the capacity were embraced in the 2008 budget the organization restructuring commenced in March of 2007 and by August the exercise was complete. The 2007 approved organizational structure had a number of features. Firstly it had a Corporate Division headed by the Corporate Director and within it, the Finance, IT and Records Management, and Human Resource Sections with the relevant positions. The fourth feature was the clear demarcation of criminal and civil jurisdictions by increasing the number of civil lawyers at headquarters and establishing positions for civil lawyers in the larger provincial offices. Although at headquarters the two jurisdictions were separated, it was not the same in the provincial offices and hence lawyers there continued to concentrate in the criminal jurisdiction with little coordinated attention to civil work or at best attending to those cases as and when the need arose. To a large measure the civil cases were left to the civil lawyers from headquarters. The fifth feature of the restructure was the inclusion of the paralegal positions. It was argued that establishing fully fledged offices with lawyers in all the provinces was expensive. A less expensive alternative was the establishment of Legal Aid Desks where paralegals are employed to assist clients with the Legal Aid Applications which would then be forwarded to headquarters for processing and if approved, a lawyer is assigned to deal with the case. This approach would enable greater access to the legal services provided by the PSO. Finally the restructure reflected an enhanced Grade 5 and Juvenile Courts section. It elevated the position of the Solicitor in Charge of this section and added two more lawyer positions. In general the number of lawyer positions was increased from 31 to 46, embraced Legal Aid Desks with the establishment of 10 paralegal positions supported by 4 lawyer positions at headquarters to professionally address the Legal Aid Applications and, for the primary purpose of severance,

15 15 established the Corporate Division with 10 positions. The rest of the positions were generally to support the work of the lawyers. The Department of Personnel Management approved the restructure with 101 positions. This restructure had a Corporate Division with Finance and personnel management sections and most significantly the positions for paralegals in those provinces where the Office does not have fully fledged offices manned by lawyers BUDGET SUBMISSION The approved organization structure plus the number of positions (101) including Corporate positions to effect budget separation and costs were relayed to the Budget Screening Committee (BSC) in September 2007 when all the agencies had to justify their estimates to this committee. The BSC was advised that the positions for the budget separation had been advertised and recruitment would commence the following month. In September the essential positions for the effecting of the separation were advertised and by late November the initial engagement of officers had commenced. Another milestone was also achieved in September when the Office on its own standing had to justify its estimates to the BSC. In the middle of November the 2008 budget was presented to Parliament and passed. The budget documents revealed that the separation had been effected into two phases. The first phase was the funding of goods and services component of the budget while personnel emoluments were deferred to a later phase. That exclusion had raised higher, the stakes for complete severance. Despite the designed phasing out of the separation, the most positive outcome was the commencement of severance from the host Department commencing during the 2008 fiscal year. IMPLEMENTATION OF THE ORGANISATIONAL STRUCTURE The 2008 fiscal year was critical for reorganization of the office, recruitment and managing. For the first time since 1958 when the Public Solicitor s Office was established it had its first budget but only for the goods and services component. Although the personnel emoluments costs were increased, the manpower ceiling of 50 had not changed under the 2008 budget which continued to be under the Department. With increased funding for personnel emoluments the Office proceeded to recruit on the bases of the

16 16 approved organizational structure of 101 positions and argued it had the funding to recruit beyond the 50 staff ceiling. Officers who were recruited under the Human Resource Section immediately commenced the task of wrestling the personnel emoluments documentation from the Department. In early 2008 personal staff files were transferred from the Department and then audited to ensure all relevant data were there and these were updated to ensure completeness of the files. Files for new commencements were opened and payroll numbers were obtained from the Department of Personnel Management s payroll section. Arguing on the basis of increased jurisdiction, increased number of cases and expanding to provinces the actual staff on strength was increased to 84 by the end of Immediately before the closure of government accounts in the middle of December the excess funds under personnel emoluments were redirected to the goods and service component of the budget for the purchase of another vehicle that year. The budget ceilings of 2007 had three vehicles for the Office but these were not reflected in the 2008 ceilings nor 2009 and Despite constant queries, it is not known up to today which branch within the Department inherited those vehicle ceilings. Along with the new responsibility a PGAS system was purchased and installed within the Office. Staff were recruited and trained to operate the system. Section 32 and requisition officers were approved by the Finance Department, gazetted and given training to discharge those duties. With the endorsement from the Department of Finance, approval was obtained from the Bank of Papua New Guinea to operate a bank Operating Account as opposed to a Trust Account (with a single line budget appropriation) and have separate cheques printed for the Office. The Public Solicitor s Office was now self accounting but not financially autonomous. Trust from the Finance Department continued to be developed and harnessed by promptly providing monthly and quarterly expenditure reports and seeking endorsement of cash flow projections for the same periods. BUDGET SEPARATION AND TRANSFER OF PERSONNEL EMOLUMENTS Preparation for the 2009 budget estimates commenced in April of The onus was now on the Office to prepare its own estimates and argue its case before the BSC. To establish a firm base for the 2009 budget estimates the Office had to develop its own Corporate Plan and provide all

17 17 other necessary material on hand for the day of cross-examination by the BSC in September Consultations were held with the Department of Finance for their guidance on the formulation of the 2009 budget as well as the actual estimates. The notable and most appropriate time of their officers presence was during the drawing up of the Corporate Plan These key officers in the Law and Justice Section within the Department of Finance saw for themselves the directions the senior officers were setting for the Office and how the key result areas were to be achieved through the 2009 work plans. Accountability for the 2008 appropriation was achieved through the publication and presentation of the 2008 Annual Report. Despite a manpower ceiling of 50, 84 positions in the approved organization structure were on the verge of being filled and justifications were provided for the inability to fill the remaining 17 vacancies. Whilst from 2005 to 2007 the office had its presence in 8 locations including a Legal Aid Desk in Bulolo, by the middle of 2008 the presence had increased by 5 more to a total of 13 locations. In 2008 presence was established in three more provinces including Manus, Wewak, Buka with Bulolo s paralegal position filled and thereby raising the PSO to become a firm establishment under the organization structure. Three more Legal Aid Desks were established in 2009 each in the following locations; Alotau, Kerema and Kainantu. Before the end of the 2010 it is anticipated three more locations will be added to the list. The paralegals for Popondetta and Vanimo have been recruited and the Legal Aid Desks are in the process of being established while the office accommodation in Kavieng has been identified with a paralegal officer to be transferred there once the office is secured. Severance from the Department of Justice and Attorney-General did not only mean having to make expenditure decisions without seeking further authority elsewhere. It was also transitional between relying on others to do your budget estimates and accounting for the actual expenditure and the Office doing all the administrative tasks on its own. That transition achieved the net positive outcomes as illustrated in the recurrent budgets for 2009 and In June 2008 the Office submitted its 2009 budget estimates to the Finance Department and by the time BSC called on the agencies to justify their estimates the Office had canvassed all the danger zones and prepared its

18 18 ammunition. On the day of justification the BSC raised the important question on whether or not the Office had developed the processes for the management and administration of human resources. This ammunition was not on hand but with the endorsement of the Secretary and Attorney-General, the processes were presented to the BSC before it rose that day. What followed next is history. When the 2009 budget was passed by Parliament in November of 2008 the PSO featured as a separate entity with a budget code of its own. Its 2009 budget was approved at K6,681,300 with both the goods and services and personnel emoluments all embraced under the same entity. Complete separation from the Department of Justice and Attorney-General had at last been achieved. The increases in budget appropriations from 2007 when the Office commenced submitting its own estimates to 2010 are demonstrated in the budget appropriation table below. Budget Approp 2005 Approp 2006 Approp 2007 Approp 2008 Approp 2009 Approp 2010 Total 2,738,720 2,831,300 3,581,500 4,958,100 K6,681,300 K7,770,200 DEVOLVEMENT OF ADMINISTRATIVE POWERS While in the process of phasing in the separation, the Department of Personnel Management (DPM) in 2008 was also devolving its important powers to some of the trusted State agencies. The DPM was devolving its powers to recruit, manage employment contracts, dismiss or disengage personnel and appeals against dismissals. Procrastination and sometimes the absence of firm decisions in these areas from the host Department was a serious and a costly concern to the Public Solicitor. Upon learning of the developments in DPM the Office made representation to this central agency for inclusion with those agencies who were trialed on implementation of these devolved powers. In July 2009 approval was granted and a MOU was signed between the Public Solicitor and DPM Secretary effectively devolving those powers to the Public Solicitor and the PSO.

19 EXPERIENCES OF BEING A NEW ORGANISATION 19 From having no administrative powers at all to having them all within a space of two years is a significant challenge to the leadership of the Office. Having those powers and the aptitude to discharge them is a challenge in itself and will continue to hold the senior management accountable. Being complacent and timid at discharging these newly acquired powers will also question the competence of the Chief Accountable Officer. Building a fair and just administration based on law with proper policies and procedures and exercising these new powers without arrogance but with caution will harness the direction that the organization will travel into the future. Immediately upon the recruitment of officers in the Corporate Division, copies of the Public Finances (Management) Act and the Public Service (Management) Act and the accompanying Policies and Procedures Manuals were obtained and distributed to all the officers who needed to know them. Basic training and guidance was provided to those who did not know policies and procedures contained in these primary documents on public sector management and to those who had memory lapses in remembering the basic rules of operation, fair and honest engagement, mediation and dispute resolution. At the outset it was acknowledged that the primary impetus for any formal employment is the salary and allowance that come with a paid job. When personal files were transferred to the Office they were updated and appropriate actions were taken to recover or credit any lost salaries and entitlements. Corporate and administrative officers were moved into new office accommodation next door giving additional office space for lawyers. It further enabled the Corporate Division a user friendly work environment and a much easier access to the Division. Empowerment in decision making and management transparency were matters of course. Powers were delegated to the two deputies and committees were formed and chairpersons appointed to address, recruitment, discipline, training, budget, public awareness, and social issues. When most contentious issues arise these are taken higher to the Senior Management Team. Regular branch heads and sectional heads meeting are conducted to inform senior personnel on the developments occurring in the Office as well as providing a forum for issues to be raised and concerns or challenges to be addressed in a transparent and friendly environment. At headquarters lawyers and corporate staff have separate weekly meetings to deal with

20 20 common administrative or professional issues. Officers were also appointed to external Committees to represent the PSO on the Corruption AMT, Infrastructure AMT, Development Budget, Human Rights, Juvenile Justice etc. Unlike the immediate past where the Office was only another branch of the Department of Justice and Attorney-General, the committees and external representation has raised the profile and informed the public of the existence and functions of the Public Solicitor s Office. Uncertainty and timidness in making decisions are acknowledged as challenges for the future. For example Recruitment, Training and Discipline Committees have made decisions which have not been acceptable to others but they are decisions to be respected but where guidance was required that support was readily available from the senior management as well as from the responsible Departments such as Treasury, Finance and DPM. INVOLVEMENT OF NCM AND LAW AND JUSTICE SECTOR Behind the scene the NCM through the Law and Justice Sector approach played the pivotal role in causing the severance and achieving the progress thus far. From the day the NCM supported the engagement of Karen Sheppard Report plus the Separation Report prepared by a local consultant, the Law and Justice Sector had supported and facilitated the implementation of the recommendations contained in those two reports. It has been most difficult to engage support personnel under the recurrent budget but the Public Solicitor s focus of the directions to take and the persistence to take the guarded and guided path never swayed. The encouragement, technical assistance and funding from the sector framework bridged the steep ridges between financial commitments under the sector development budget and PGAS commitments under the recurrent budget. Funding from the sector facilitated and supported staff training, maintenance to offices, and purchase of office furniture and equipment. Under the banner of severance these improvements raised and enhanced staff moral. Assistance continues to be given towards improving the case management system which has improved the process for tracking case files, collecting data and enhancing the statistics provided to the relevant authorities to justify the operations including the budget estimates to the Treasury and Finance Departments.

21 21 Establishing Legal Aid Desks and expanding access to locations where there is no PSO s presence is a home-grown concept to minimize the up-front costs of expanding operations to all provinces in the country. The actual engagement of paralegals is under the organizational restructure and this means the salaries and allowances costs are being met under the recurrent budget. However all other initial costs for this expansion are being met under the sector s development budget funding. These costs range from travelling to the new locations, renting new office accommodation, doing the maintenance to office accommodation, connecting telephone and electricity, purchasing office furniture and equipment and training paralegals. CHALLENGES AHEAD Bridging the operational funding between the development and recurrent budgets remains the most significant challenge. The Legal Aid Desks are the first leg of commencing operations in a province. Subject to the demand, work volume and the receptiveness of the Provincial Administrations, these Desks are intended to be expanded into fully fledged offices with lawyers and support personnel manning them. This is where the recurrent operational costs will increase and be sustained. The operational costs are gradually being embraced under the recurrent budget but whether or not funding capacity will be sustained in the long term remains uncertain. Management capacity to administer and care for the increased number of offices is the next challenge. Capacity in this regard is being developed. At this stage the responsible officers are giving more inward attention on headquarters requirements rather then focusing on the overall needs of all the established offices. Monthly reports and the monitoring and evaluation travels done by senior officers from headquarters are addressing this challenge. The organization has grown to be an independent entity capable of asserting its own standing as a Constitutional Office in the country. Management and administrative responsibilities are growing much faster than the capacity to address the issues. On the first level, management experiences, talents, and knowledge possessed by non lawyers needs to be harnessed to become competent and confident. Officers are being trained to overcome that challenge. The second level is the volume of cases and Legal Aid Applications which have doubled in the space of three years. Unfortunately many of our young lawyers require more practice experience in managing cases and senior lawyers need to think beyond their own caseload and give

22 22 more attention to supervise and mentor young lawyers. Constant oversighting and reminders by the Public Solicitor is gradually compelling the lawyers to perform according to the duty statements of the positions they hold. However the growing volume of cases can no longer be denied. Delineating the jurisdictions and realigning case work responsibilities has enabled more opportunities for the ordinary People to gain access to the justice services provided by the Office. Legal Aid applications are literally pouring in from the established Legal Aid Desks. The volume of cases in the civil jurisdiction has exceeded the traditional work in the criminal jurisdiction. Grade 5 and Juvenile courts are asserting more attention from lawyers to guide the performance of the magistrates in these courts. A second restructure which addresses these issues was completed this year and is now awaiting the final decision from the Department of Personnel Management. The challenges are not exhaustive but the final one here is staff housing. Experienced lawyers are being lost to the greener pastures where staff housing is provided or allowances provided to secure accommodation. This concern continues to erode and diminish staff morale and performance ethics, prevents transfer of lawyers to alternative locations and constrains punitive disciplinary decisions which at times need transfers out rather than dismissals. It is a major challenge where a solution is yet to appear on the horizon. Renting staff accommodation was factored into the 2011 budget estimates. In the event this was approved the Office will rent staff accommodation to reside thus alleviate to some extent the concern over staff accommodation but if this does not eventuate, the search will continue for innovative options as early as possible. CONCLUSION Severing the umbilical cord from the Department of Justice and Attorney- General was never going to be an easy task. Embedding the Public Solicitor s Office in the Constitution of the country provided the firm base to make the transition easier. Understanding the existing relationships, massaging hard alliances and creating trusted partnerships has demonstrated the achievements of cooperation amongst agencies. Assistance and positive support from the Departments of Justice and Attorney-General, Personnel Management, Treasury, and Finance and from the NCM and the Law and Justice Sector demonstrate that the vision and conviction of the Public

23 23 Solicitor s Office for severance was achieved through the common understanding and the combined cooperative endeavors of many agencies. The challenges made the journey exciting. Overcoming those challenges along with the incentives towards reaching the objectives provided a stimulus to achieving something for the People of Papua New Guinea. By negotiating the hurdles and overcoming the obstacles the Public Solicitor s Office finally gained full constitutional and financial autonomy in Challenges for a redefined organization still continue but the experiences of the immediate past does shed some light on overcoming the difficult terrain in public sector management. Thank You FRAZER SAPULAI PITPIT PUBLIC SOLICITOR