What rules of procedure are applicable to the commission of inquiry?
In Papua New Guinea, a Minister appoints a Commission of Inquiry. A Minister makes this appointment under the Commissions of Inquiry Act (the Act). A Commission will conduct an inquiry in such matters which the minister thinks that it concerns public welfare. The Act gives a wide discretionary power to the Commission to make such rules as it thinks proper for the conduct of the proceedings before it. It may also make rules for the times and places for its meetings and for adjournment of its hearing. However, those rules must not be inconsistent with the terms of the instrument of the appointment of the Commission.
Powers of the Commissioner
The Act gives the Commissioner the power to summon a person to attend before the commission to give evidence. By giving, it includes producing any documents, books or writing the person summoned has in his custody or control. The summons must be in writing and issued under his hand of the Commissioner. The summons will set out the time and place when the person is required to attend before the Commission.
In addition to that power a commissioner may administer an oath to a person appearing as a witness before the Commission. This is irrespective of whether that person is summoned or appears without being summoned. Furthermore, the commissioner may examine the witness on oath.
“The Commission by its very establishment and nature inquisitorial in nature with extensive powers to compel the giving of evidence and the production of documents by witnesses it considers relevant and appropriate. The Commissioners are therefore expected to play a far more active role in ascertaining facts then a Court would. It is therefore appropriate to allow for a wide range of expression and conduct of the Commissioners and one should not interpret robust conduct as bias.”
Justice Kandakasi, as he then was, in Bank of Papua New Guinea v Marshall Cooke QC [2003] PGNC 127; N2369
Offences
If you are served with a summons and you fail to attend before the Commission you are guilty of an offence. Even if you appear but fail to produce any document, book or writing wherein you were summoned to produce, you are guilty of an offence. The Act also gives the person summoned an opportunity to explain his failure not to comply. You must give a reasonable excuse for your failure to comply and therefore the Commission will exercise its discretion. There are two forms of penalty for this. You can either pay a fine not exceeding K5, 000.00 or imprisoned for a term not exceeding two years.
If you have no reasonable excuse, then the only defence is to prove that the document, book or writing you are summoned to produce is not relevant to the inquiry.
If a person appearing as a witness does any of the following then he is guilty of an offence:
- refuses to be sworn.
- refuses to make an affirmation.
- refuses to answer any questions relevant to the inquiry put to him by a commissioner.
- leaves the Commission without the permission of the Commissioners.
- Gives false evidence.
The penalty for these offences set out as items 1, 2, 3 and 4 is a fine not exceeding K5, 000.00 or imprisonment for a term not exceeding two years. The penalty for item 5 is imprisonment for a term not exceeding 14 years.
You are guilty of contempt of commission of you do any of the following acts:
- wilfully insults the Commission.
- wilfully interrupts the proceedings of the Commission.
- is in any manner guilty of wilful contempt of the Commission,
The penalty for this offence is a fine not exceeding K5, 000.00 or imprisonment for a term not exceeding two years.
Are counsels permitted to appear before the Commission?
The short answer is yes. The Act permits counsels to appear before the Commission on behalf of their client. However, they can only appear if their client satisfies to the Commission that he has a bona fide interest in the subject matter of the inquiry. The Commissioner will then grant leave to the person to appear. That person can then choose to appear by himself or engage a counsel to represent him.
Is the inquiry closed to the public?
No, it is not. The commission will hold the inquiry in public. However, the Commission has the power to exclude any person or persons to preserve order and the due conduct of the inquiry. Another circumstance where part of the inquiry will not be made in the public is when the commission order that all evidence before it be given in private. However, this must be done with the approval of the minister.
Furthermore, the Commission may direct that any evidence that is given before it must not be publish. This includes any document, book or writing that is produced before the Commission. If a person published it without the consent of the Commission or the minister, he is guilty of an offence.
What happens to the findings of the Commission?
Once the Commission concludes its inquiry, it will make a report of its proceeding and the results of its inquiry to the Minster. The Commission shall record the reasons for its conclusions. In cases where a Commission consist of more than one commissioner and if a commissioner dissents from the conclusion, he must give his reasons for the dissent.
The Minister will then lay the report before the Parliament. He must do that no later than the first day of the second meeting of the Parliament after he receives the report from the Commission. However, this is subject to the minister’s opinion on whether the tabling of the report in Parliament is contrary to public interest.
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