“For there to be a breach of the Public Finance Management Act for failure to provide annual reports to Parliament on time, such failure must be “willful”. There are times when the delay is caused for eg: by delays with the auditing of accounts because the Auditor is inundated with other auditing obligations” – A.G. Aumua Ming Leung Wai
Attorney General, Aumua Ming Leung Wai, has explained his Office’s position over claims that the Ministry of Finance – and other government bodies - have broken the law in relation to the timely submission of annual financial reports.
“My office does not automatically move to prosecute simply because someone says that the law has been ‘broken’,” Aumua wrote in an email to the Samoa Observer.
“It is imperative that the relevant Ministry that has been mandated to administer such law carry out the necessary investigations to determine if a law has been breached."
“If it appears that a law has been breached, then all relevant factors will be looked at before deciding on whether to prosecute or not."
“Sometimes the Ministry would proceed with the prosecution, other times the file is referred to my Office to decide on whether to prosecute or not.”
Attorney General Aumua was asked by the Samoa Observer for a comment following revelations that the Ministry of Finance broke its own law, the Public Finance Management Act 2001, on more than one occasion.
The revelations were made by the Finance and Expenditure Committee (F.E.C.) in its report to Parliament on Public Accounts for the Financial Year ended June 30 2008, June 30 2009 and June 30 2010.
Obtained by the Samoa Observer, the report was among 39 reports tabled and approved by Parliament when it last sat in April.
It was not debated.
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Committee focussed its inquiries on two main objectives. First was to determine whether or not the projected revenues had been achieved by the Ministries and second was to see whether or not money approved for the Ministries had been spent properly.
In the end, the Committee found a number of problems at the Ministry. The most alarming issue was the violation of the Public Finance Management Act 2001.
Asked if it was not time for his Office to prosecute, Aumua said they have to determine first whether the breach of law was “wilful.”
Said he: “For there to be a breach of the Public Finance Management Act for failure to provide annual reports to Parliament on time, such failure must be “wilful”."
“There are times when the delay is caused for eg: by delays with the auditing of accounts because the Auditor is inundated with other auditing obligations."
“As stated before, it is really for the Ministry of Finance to investigate the issue and the circumstances for such failure before deciding on what course to take."
“If prosecution is pursued and is successful, the maximum penalty is $5,000 against the relevant Corporation.”
The Attorney General added, “aside from prosecution, there are other options available, eg: performance review of the CEO of the Corporation as per his or her employment contract.
“The newly established ministerial portfolio called “Public Enterprises” will also be looking at ensuring the efficiency of the operations of public bodies, which would of course include timely reporting to parliament.”
The Attorney General said it is important to consider all factors in these matters.
“My office would consider all relevant factors before it decided on whether to prosecute or not,” he said.
“This is normal for prosecuting agencies in common law countries.”
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