A cause for concern
IN May 2023, the House of Representatives passed H.B. 23-22, which would authorize the investigators of the Office of the Attorney General to “serve subpoenas, arrest and perform all other functions lawfully authorized for police officers.” The bill was introduced in March, and referred to the House Judiciary and Governmental Operations Committee, which issued a report recommending the legislation’s passage in April. As far as we know, no public hearings were conducted by the House on the bill.
But the JGO committee report included comments solicited from the AG’s office, the Office of the Public Auditor and the Office of the Public Defender. The AG supports the bill, but requested changes to some of its provisions. The public defender, for his part, expressed “several serious concerns.” H.B.23-22, he said, “creates an unchecked police department by creating an investigation unit…with the power of arrest. This agency is unchecked by the legislature or the administration. This is completely unnecessary and ill-advised. Currently AGO and OPA have oversight authority over DPS. But H.B. 23-22 creates a law enforcement agency with no oversight. Some states do have a state wide investigative agency but so does the CNMI. Here it is DPS. A state law enforcement agency oversees investigation throughout the entire state, just as DPS does throughout the Commonwealth. This new bill will eliminate the current checks and balances. If there were municipal police departments, such as a separate Garapan police department and Susupe police department or even Rota, Tinian and Saipan police departments then there may be a reason for an overseeing law enforcement agency. But this legislation creates a separate parallel agency with the same authority as DPS. However, unlike DPS, whose commissioner must be approved by and can be removed by the Senate or governor, this agency has no oversight beyond the AG. Any need for policing of the central government or legislature can already be done by the Public Auditor who already has investigators for that purpose.” (Our italics.)
Moreover, the public defender said, there are “ethical and conflict of interests issues. There are times in a criminal case when a defense lawyer will raise issues of DPS violating a person’s rights against unlawful search and seizure or the unlawful taking of incriminating statements. When an Assistant AG defends a police officer against such an assertion there is no problem. But this new bill would create a situation where the AG is defending the actions of a colleague and someone who acted at the direction of the AG. This will raise concerns. Maybe a special prosecutor should be appointed, but this will be expensive. And if the AG decided not to appoint a special prosecutor even the courts cannot act to see justice is served.”
These are serious concerns, as the Senate president has pointed out.
OPA, too
IN its written comment, OPA, too, flagged some potential issues. The AG’s office, OPA stated, “already has an active Investigation Unit and its agents are already statutorily recognized as law enforcement officers under Commonwealth law. Thus, the creation of the Investigations Division by H.B. 23-22 appears unnecessary and potentially duplicative.” (Our italics.)
OPA also believes that “the largest current barriers to combating public corruption are the lack of suitable criminal provisions and the lack of a designated prosecutor within the OAG to focus on public corruption. Many crimes involving public corruption are either vestiges of the Trust Territory Code and/or carry penalty provisions out of sync with the seriousness of the harms perpetrated by instances of public corruption. OPA recommends pursuing an omnibus public corruption crimes act and legislative funding and designation of a prosecutor within the OAG to focus on public corruption, similar to the creation of the Office of Consumer Counsel which focused on protecting consumer rights in the Commonwealth initially passed in Public Law 6-46.”
While OPA “unequivocally supports efforts to encourage and enhance the investigation and prosecution of crimes involving public corruption, our office believes other measures might be more effective to achieving that end, as recommended above.” (Our italics.)
We hope that the Senate will look into the public defender and OPA’s comments and concerns. Public hearings should also be conducted. If lawmakers are truly serious about “fighting corruption,” they should make sure they aren’t creating new and/or more problems when passing “anti-corruption” legislation — such as bills that could enable abuse and further politicize law enforcement.
