As rightly stated by Herman De Jager in ‘Importance of Legislation, 2000’ “Legislation is one of the most important instruments of government in organising society and protecting citizens. It determines amongst others the rights and responsibilities of individuals and authorities to whom the legislation applies. On the other hand, a law has little or no value if there is neither discipline nor enforcement.”
As a citizen of Solomon Islands, ask yourself how far have we come in terms of our development and what can you, as an individual citizen do?
Although as citizens, you and I do not have the power to make laws [our Constitution gave Parliament the power to make laws for the peace, order and good government of Solomon Islands] there are avenues that we can use to give our views and/or contributions on new laws or proposed amendments to existing laws.
Submissions made to the Bills and Legislation Committee (“the Committee”) is one such avenue.
The Committee is responsible for reviewing draft Bills before they are introduced into Parliament. In its review process, the Committee calls for public submissions through newspaper advertisements or by contacting organisations and individuals with known interest in the Bill to appear before it in person.
Once consultations and inquiry into the Bills are complete, the Committee will make its report to Parliament containing the observation and recommendations arising from the consultations.
Currently there are 8 Bills in Parliament namely; (1) The Anti-Corruption Bill 2017, (2) The Constitution (Amendment) (Dual Citizenship) Bill 2017, (3) The Citizenship Bill 2017, (4) The Strata Titles Bill 2017, (5) The Prescription of Ministers (Amendment) Bill 2017, (6) The Legal Profession Bill 2017, (7) The Whistle-blowers Protection Bill 2016; and (8) The Constitution (Amendment) (Electoral Reform) Bill 2018.
On Wednesday 14th February 2018, the Committee advertised in the Solomon Star newspaper a call for submissions from individuals, groups and organisations who wish to express their views, knowledge or experiences on the Anti-Corruption Bill 2017 and the Constitution (Amendment)(Electoral Reform) Bill 2018.
Transparency Solomon Islands was given an opportunity through this call to the public for submissions, and we made our submission to the Committee on the Anti-Corruption Bill 2017.
We later received an invitation from the Committee to submit on the Constitution (Amendment) (Electoral Reform) Bill 2018.
For this article, TSI wishes to share our submission on the Anti-Corruption Bill 2017.
We believe that we need to continuously bring to the fore this issue of fighting corruption and the fact that not only is it important to have anti-corruption laws, but such laws must be robust to help in the fight against corruption.
Strong laws that will enable the rights, duties, powers and responsibilities of individuals and authorities to whom this legislation applies.
Laws that will contribute to the improvement of our ranking in the Corruption Perception Index. Last year 2017 Solomon Islands scored very badly [ Score 39, Rank 85] of the 180 countries assessed.
Much of that can be attributed to our leaders, dilly-dulling over the anti-corruption bills after assuring the people of this country, of their commitment to fight corruption, since 2015.
In their dilly-dulling they have now gone as far as including clauses to protect themselves and their cronies from being investigated and excluding clauses that would make a difference and have a real impact on corruption in this country, using the Constitution as an excuse.
If it is already there, why put in the Bill – simply to protect their corrupt conducts being investigated.
Below is an extract from our submission to the Bills and Legislative Committee.
TSI VIEW ON THE ANTI-CORRUPTION BILL 2017
TSI is of the view that, given our country’s urgent need to have an Anti-Corruption legislation in place, the Bill in its current form is adequate for passage. There are however three (3) issues that TSI would like to submit on, namely (i) Section 6 – Application of the Bill, (ii) Custom as Defense, and (iii) Unexplained Wealth.
ISSUE (I) SECTION 6 – APPLICATION OF ACT
Section 6 was recently added to the Anti-Corruption Bill 2017. Section 6 is drafted as follows;
“s6 Application of Act
(1) This Act does not apply in relation to conduct that occurred before this Act commenced.
(2) Without limiting subsection (1), the Commission’s powers under part 4 do not apply in relation to conduct that occurred before this Act commenced.”
TSI understands that the plausible justification for including section 6 is to avoid retrospective application of a criminal law as protected by section 10(4) of the Constitution. Section 10(4) states that: “No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed.”(TSI wish to emphasis this point for noting by the Committee)
For reasons of this inquiry, it is also vital to understand the inherent powers vested by the Constitution in Parliament. The Constitution empowered the parliament to make retrospective laws, this is by virtue of section 59 which provided that Parliament is permitted to make laws for ‘the peace, order and good government of Solomon Islands’. Section 59(3) further provides that ‘Parliament may … make laws, subject to section 10(4) of this Constitution with retrospective effect’.
TSI strongly believes that, for the purposes of the Commission’s inquiry into this Bill, it is essential that the Commission must ask the question of whether there are new offences being created by the Bill and how it applies in view of s10(4) of the Constitution and the general rule at common law in regards to presumption against retrospective operation.
TSI strongly believes that only if we can ask this question and honestly answer it, can we rightly say that we need s6 to ensure that we avoid holding someone guilty of a conduct that was not deemed an offence at the time the conduct occurred.
For ease of reference we would like to outline the new offences created by the Bill. These can be found in Part 5 – General offences (s51 – s54).
These offences relate only to conducts/acts that impedes the functions of the Commission and not conducts/acts that occurred before the Anti-Corruption Act comes into effect. Sections 51 looks at the offence of providing misleading information or documents to the Commission or its officers.
Section 52 looks at the offence of impersonating an authorised officer. Section 53 looks at the offence of obstructing or threatening an authorised officer and section 54 looks at the offence of disclosure of confidential information.
Whilst we must not ignore the fact that the rule at common law stipulates that a statute ought not be given a retrospective effect, the inherent powers vested by the Constitution in Parliament empowers Parliament to pass statutes with retrospective effects.
TSI understands or knows that the SI Parliament has passed laws in the past with retrospective operation. One such example is the Members of Parliament (Entitlements)(Amendment) Regulations 2009, were published in the Gazette as Legal Notice No. 45 of 2009 on 6 July 2009 and made to come into force with retrospective effect on 1st April 2009.
We ask “Is the parliament going to pass laws and pass them retrospectively only if it benefits Members of Parliament and put in this provision in any law that threatens their benefit or that which is not beneficial to them?”.
In conclusion with regards to Issue 1, TSI is of the view that there is no justification to include section 6, as the Bill does not offend against section 10(4) of the Constitution.
The only effect of s6 will be to prevent the new Anti-Corruption Commission from investigating and prosecuting historical offences, which they would otherwise do according to the law that was in force at the time the offences were allegedly committed.
It will not change any rights and liabilities of people affected by the amendments. It will only shield past criminal action from scrutiny by the Commission. Section 6 must be removed.
ISSUE (II) DEFENCE OF CUSTOM TO PROSECUTION OF BRIBERY OFFENCES
The second issue that TSI would like to submit on is the inclusion of custom as a defence.
The inclusion of custom in the current proposed amendments to the Penal Code means that in the event that a person is charged with the offence of bribery, it is a defence to a prosecution that the defendant acted (ie:-promised, offered and/or gave the benefit) in accordance with custom.
The defence of custom is a good example of bad law, particularly when one considers its application in the context of Solomon Islands where wantokism or nepotism is a common and prevalent factor that contribute much to corrupt practices in the country.
Given the broad inferences that ‘custom’ in Solomon Islands context can imply, TSI strongly submits that the provisions in the proposed amendments to the Penal Code making references to the defence of custom must be removed.
The inclusion of custom undermines the purposes of the bribery offences. Furthermore, this defence is susceptible to abuse and may discourage prosecutions for charges of corruption initiated on the basis of the bribery offences.
In conclusion with regards to Issue 2, TSI submits that the defence of custom be removed from being used as a defence to prosecution of Bribery offences in PART X of the revised Penal Code.
ISSUE (III) INCLUSION OF UNEXPLAINED WEALTH
The final issue that TSI would like to submit on is a call to include ‘Unexplained Wealth’ in the Bill.
TSI is of the view that the accumulation of unexplained wealth by public officials must be included in the Bill.
Corruption is rife in our country. Although it would be impossible to claim that we can eradicate corruption instantaneously, having a strong piece of legislation that would adequately address corruption offences is a step in the right direction of combatting corruption.
Solomon Islands is party to the United Nations Convention Against Corruption (UNCAC). Article 20 of the UNCAC criminalised unexplained/illicit wealth.
Our government is sworn to serve the interest of our people and country. It is time that we must avoid painting a glamorous picture of SI adhering to the United Nations Charters whilst in our domestic levels, it is anything but.
TSI would like to remind the Commission that during your inquiry into the Bill, bear in mind that it is the ‘position’ held by the public official that necessitates having such provision in our anti-corruption legislation. This is to deter and avoid abuse of such a public office.
If indeed we are serious about tackling corruption, we must include ‘unexplained wealth’ in the Bill.
With regards to issue 3, TSI submits that ‘unexplained wealth must be included in the Bill.
In conclusion, TSI would like to once again commend the Commission for carrying out this inquiry giving TSI the opportunity to make this submission.
TSI submits that we need to have in place a robust piece of legislation to combat corruption.
Having said that, TSI would like to strongly reiterate our submission on the three issues raised as follows; (i) That section 6 of the Anti-Corruption Bill 2017 must be removed, (ii) That defence of custom to prosecution of bribery offences must be removed from the proposed amendments to Part X of the revised Penal Code and (iii) That ‘unexplained wealth’ of public officials must be included in this Bill.
Transparency Solomon Islands wishes to remind our fifty Members of Parliament the of the Civil Society Organisation, concerned individuals, citizen and the deaf and dumb group using sign language of their plea to you to be their champion, asking you to pass the anti-corruption bill without Clause 6 and custom as defence and inclusion of unexplained wealth, during the marking of the International Anti-Corruption Day 2017.
From TRANSPARENCY SOLOMON ISLANDS