OC told to lift fund restrictions

By Alphonse Porau
The National Court has ordered the Ombudsman Commission to lift the constitutional direction that restricts withdrawals from the bank account of Ambunti-Dreikikier and its district services improvement programme account at Bank South Pacific.
Justice Colin Makail also gave the order in Waigani yesterday for all orders in force to be lifted to allow the plaintiffs to access funds in those bank accounts.
The plaintiffs in the matter are district administrator Francis Kambaka and the district development authority.
The defendants are acting Chief Ombudsman Michael Dick, acting Ombudsman Richard Pagen, the commission and the State.
Justice Makail said a declaration that the decision, action, inaction or omission by the Ombudsman Commission in neglecting, failing, refusing or not performing their duties diligently in replying to the request by the plaintiff to lift the direction dated May 23, 2014, was harsh and oppressive, unreasonable, breached of natural justice and also unlawful pursuant to section 41 of the constitution.
“A declaration that the continual restrictions by the Ombudsman Commission on all withdrawals from the district’s bank account is harsh, oppressive, unjust, unfair, prejudicial, discriminatory, unreasonable and disproportionate to the plaintiffs and the people of Ambunti-Dreikikier under the circumstances of the investigation by the OC and is unlawful,” Justice Makail said.
The court heard that in May 2014, the commission received information that K92,705 was deposited into the bank account of a company in which Ambunti-Dreikikier MP Ezekiel Anisi was a director. The source of the funds were the district’s DSIP in which Anisi was a leader under the
leadership code, the court was told.
It heard that on further investigation, further irregularities were discovered regarding the concerned account and investigations were conducted into the conduct of the bleader to protect public funds from being abused in the process.
The Commission exercised its powers and on May 23, 2014, issued directions over the account and other accounts which had transacted public funds from the account.
The court heard that as the investigations were almost complete, the Commission had considered lifting the direction, but further discovered that despite the issuance of the direction, the funds were used, and in most cases it appeared that the funds were accessed without complying with procurement processes or no proper acquittals were made.
After waiting for more than two years with no information from the Commission in relation to the lifting of the direction, the plaintiffs wrote to the Commission on three occasions to withdraw restrictions.
Justice Makail said the ground for review was that the plaintiffs questioned the exercise of power by the defendants under section 27 of the constitution, alleging the direction issued by the Commission was “unfair, harsh and oppressive, discriminatory, a misuse or abuse of power, unreasonable, in breach of natural justice, made in bad faith or motive and biased decision”.
All the grounds were mooted to have the direction quashed and the plaintiffs to have access to funds because of the prolonged delay.
“There is no doubt in my mind that what the Commission has done was genuinely fitting under the prevailing circumstances at that time,” Justice Makail said, adding that, “that is that, to stop further suspected abuse or misuse public funds of the district authority by its official and its authority.
“Thus, it cannot be guilty of maintaining the direction in bad faith or with ulterior motives, nor am I convinced that it was biased.
“But to maintain directions while apparently the investigation of the leader may have been almost completed is not the legitimate way of addressing the alleged breach of the direction. To do this is irrelevant and indeed contradictory.”
Justice Makail ordered that all interim orders in force were dissolved forthwith and the defendants pay the cost of the proceedings, to be taxed, if not agreed.