Peace Agreements Digital Collection: Bougainville (Papua New Guinea)
Bougainville Peace Agreement
Autonomy (continued)
Structures of the Autonomous Bougainville Government
Legislature
The Bougainville Constitution will provide that the institutions of the autonomous Bougainville Government will include a legislature which shall be a mainly elected body, but may also include members appointed or elected to represent special interests, such as women, youth, churches.
Executive
The Bougainville Constitution will provide for the autonomous Bougainville Government to include an accountable executive body.
There will be a head of the executive whose title, method of appointment, and powers and functions will be specified in the Bougainville Constitution.
Judiciary
The Bougainville Constitution may provide for an impartial judiciary for Bougainville, or may provide for Bougainville to operate either in full or in part under courts established under the national Constitution.
Powers and Functions of Legislature, etc.
The powers, functions and procedures of the legislature, executive and judiciary will be as specified by or under the arrangements in this Agreement and the Bougainville Constitution.
Other Government Institutions
The Bougainville Constitution may establish other institutions that may be required for the autonomous Bougainville Government to carry out its powers and functions effectively, including institutions responsible for public administration provided for elsewhere in this Agreement (such as bodies to administer separate public service, police, teaching service and correctional institutional services bodies) and local government bodies.
Considerations Concerning Decisions on Bougainville Institutions
Decisions made by both the Constituent Assembly and the legislature of the autonomous Bougainville Government about establishing institutions proposed to be part of the autonomous Bougainville Government shall be made only after considering the costs likely to be involved in such decisions and the administrative capacity necessary to implement them. Such decisions include those about:
the number of seats in the Bougainville legislature from time to time;
the courts within the Bougainville judiciary;
provision in the Bougainville Constitution for institutions other than the legislature, the executive and the judiciary.
Accountability of Government Institutions
The Bougainville Constitution will make provision for the accountability of all institutions created under it.
Provision in relation to accountability will include arrangements concerning a public accounts committee of the legislature, audit of provincial accounts and management of the revenue funds and accounts of the autonomous Bougainville Government.
Interim and Transitional Arrangements
Until the autonomous Bougainville Government is established through elections, the Bougainville Interim Provincial Government will continue to operate in accordance with the Organic Law on Provincial Governments and Local-level Governments and also in accordance with arrangements already agreed between the Bougainville parties.
When the Organic Law on Provincial Governments and Local-level Governments ceases to apply in Bougainville and the autonomous Bougainville Government is established, the Bougainville Interim Provincial Government and the Bougainville People's Congress will cease to exist.
Constitutional Office-holders
Bougainville will have the power to create independent Constitutional Office-holders to carry out powers and functions within Bougainville's constitutional responsibilities.
National Constitutional Office-holders will continue to carry out their responsibilities in areas of national jurisdiction in Bougainville.
National Government and Bougainville Constitutional Office-holders may enter into cooperative or agency arrangements to avoid gaps and duplication and to encourage common standards.
The autonomous Bougainville Government will bear the cost of creating and maintai ning Constitutional Office-holders in Bougainville.
Appointments to Constitutional Office-holders and Heads of Services
The bodies established by or under the Bougainville Constitution to make appointments of Bougainville judges, other constitutional office-holders, and heads of the Bougainville Police and any body equivalent to the Correctional Institutional Services shall include two nominees of the National Government.
Bougainville Salaries and Remuneration Commission
The autonomous Bougainville Government may establish its own independent Salaries and Remuneration Commission under the Bougainville Constitution to recommend the salaries and other conditions of elected leaders, Constitutional officeholders and statutory heads (including heads of the Bougainville Police and any body equivalent to the Correctional Institutional Services) appointed under that Constitution; the autonomous Bougainville Government will meet any additional costs.
The recommendations made by the Bougainville Salaries and Remuneration Commission will take full account of advice from the National Salaries and Remuneration Commission concerning the maintenance of relativities of pay and conditions with those for similar offices in other parts of Papua New Guinea and at the National level.
The Bougainville legislature will have the power to accept or reject (but not to amend) recommendations from the Bougainville Salaries and Remuneration Commission.
The National Salaries and Remuneration Commission will continue to recommend the salaries and other conditions of elected leaders, Constitutional officeholders and statutory heads appointed under the Bougainville Constitution until and unless the autonomous Bougainville Government establishes its own Salaries and Remuneration Commission.
The autonomous Bougainville Government will be represented on the National Commission when it deals with positions under the Bougainville Constitution.
Division of Powers and Functions
Two List System for Dividing Powers and Functions
Basis for Drafting Lists in Constitutional Laws
Powers and functions will be divided between the National Government and the autonomous Bougainville Government by allocation to two comprehensive lists.
Those lists will be as exhaustive as possible of known and identifiable powers and functions of government.
The parties may be required to further consult and agree on issues that arise during the drafting of the constitutional amendments relating to how particular powers are to be described and where particular aspects of powers and functions belong.
The Constitutional Laws implementing this Agreement will provide an agreed mechanism to deal with possible overlap or conflict between the two lists.
National Government List of Powers and Functions
Consistent with national sovereignty, the National Government will exercise powers and functions on the National Government list in relation to Papua New Guinea as a whole, including Bougainville.
The agreed National Government list is as follows:
Defence;
Foreign relations;
Immigration;
Highly migratory and straddling fish stocks;
Central Banking;
Currency;
International civil aviation;
International shipping;
International trade;
Posts;
Telecommunications;
Powers required for direct implementation of the National Constitution, as amended in implementation of this Agreement (for example, citizenship, national elections);
All other powers for which the National Government is responsible under other provisions of this Agreement.
Bougainville List of Powers and Functions
The list of powers and functions of the autonomous Bougainville Government will:
include all known or identifiable powers not on the National Government list, beginning with the powers that have been available to provincial governments under the National Constitution;
be developed during the drafting of the Constitutional Laws implementing this Agreement.
The Bougainville list will include the power to decide on foreign investment applications for Bougainville, and the autonomous Bougainville Government may establish its own administrative mechanism in relation to foreign investment matters for Bougainville.
Bougainville to Respect National Government's International Obligations
The powers and functions of the autonomous Bougainville Government will be subject to Papua New Guinea's international obligations and human rights:
existing international obligations of the National Government will remain in place;
the National Government will consult the autonomous Bougainville Government before new obligations are entered into.
For the sake of clarity, the parties agree that the international obligations which apply to Bougainville include treaties and other written international agreements to which the National Government is or becomes a party.
The National Government and the autonomous Bougainville Government will resolve any differences over Papua New Guinea's obligations arising from generally accepted rules of international law through the agreed dispute resolution procedures.
Subjects Not Now Known or Identified
Consistent with the agreed process for the transfer of powers, any subject not listed on either list will remain initially with the National Government, provided that:
where either of the Governments wishes to legislate on a subject which is not clearly on either list, it will consult the other with a view to reaching agreement on which government should be responsible for the subject;
if either Government passes a law on an unlisted subject, then the other may, if it disagrees, contest it through the agreed dispute settlement procedures;
any dispute over which of the Governments is responsible for a power or function will be resolved by applying the principles governing the division of powers in this Agreement.
Transfer or Delegation of Powers and Functions
Either Government may, by agreement, transfer or delegate powers and functions, including financial powers and functions, to the other.
Agreed Arrangements Concerning Exercise of National Government Powers in Relation to Bougainville
Powers and functions on the National Government list shall be exercised in relation to Bougainville in accordance with the arrangements set out in this Agreement.
Defence
The National Government will exercise this responsibility in Bougainville in accordance with this agreement and arrangements made under it.
The Papua New Guinea Defence Force (PNGDF) remains a national organization which recruits throughout Papua New Guinea.
Maritime and Border Surveillance, Search and Rescue, Assistance in Natural Disasters, etc.
The PNGDF will continue to assist in meeting Papua New Guinea's international obligations as well as carrying out maritime and border surveillance and enforcement.
The National Government will be able to send PNGDF personnel to Bougainville for purposes of search and rescue and assistance in natural disasters and other humanitarian emergencies in response to requests from the autonomous Bougainville Government, or by giving prior notice to agreed points of contact in Bougainville.
The parties will co-operate in assisting the PNGDF to carry out the above activities.
In the interests of transparency and mutual confidence-building, the National Government and the autonomous Bougainville Government will make arrangements for officials of the autonomous Bougainville Government to participate actively in the Bougainville-based aspects (including maritime aspects) of the above activities.
Other Activities
After the withdrawal of the PNGDF from Bougainville in accordance with the agreed weapons disposal plan, other PNGDF activities in Bougainville will be on a co-operative basis following consultation between the autonomous Bougainville Government and the National Government.
The parties will conclude an agreed arrangement that, in respect of land-based activities and facilities in Bougainville, they accept that -
the PNGDF requires immediate access to wharves, airfields, refueling, stores and associated facilities;
the National Government has no immediate plans for the PNGDF to have facilities, a base or a permanent presence in Bougainville after phased withdrawal in implementation of the agreed plan for weapons disposal;
the National Government will consult the autonomous Bougainville Government before finalising any plans to develop any of the above for the PNGDF in Bougainville; and
PNGDF personnel in Bougainville after phased withdrawal in implementation of the agreed weapons disposal plan will be unarmed.
While the agreed arrangement will not be embodied in the National Constitution or an Act of the National Parliament, any disputes over it may be subject to the agreed disputes resolution procedures.
The parties will meet at an early, mutually convenient time to consider developing an agreed plan for civic action by the PNGDF to assist in restoration and development in Bougainville.
The need for any additional PNGDF facilities in Bougainville will be addressed in the agreed five-yearly reviews.
Implementation
The National Government and the autonomous Bougainville Government will establish agreed procedures to give effect to the above.
Consultations and resolution of any disputes over defence will be in accordance with these provisions and the agreed dispute resolution procedures.
Foreign Relations
The two Governments will establish mechanisms for consultation in agreed areas of foreign affairs.
Regional Organisations
The National Executive Council may allow Bougainville to send a representative or observer to regional meetings and organisations.
The autonomous Bougainville Government may nominate a representative to be included in National Government delegations to regional meetings and organisations of clear special interest to Bougainville.
The autonomous Bougainville Government will meet any additional costs arising from its participation.
International Agreements Bougainville's Role
The autonomous Bougainville Government may request the National Government's assistance or concurrence through an agreed mechanism for the autonomous Bougainville Government to participate or engage directly in the negotiation of international agreements of particular relevance to Bougainville.
The autonomous Bougainville Government will respect the National Government's authority regarding international agreements.
Future Treaties
An international agreement negotiated or signed with a purpose of altering the agreed autonomy arrangements will take effect only with the agreement of both the National Government and the autonomous Bougainville Government.
If a disagreement arises between the National Government and the autonomous Bougainville Government as to whether an international agreement has been negotiated or signed with such a purpose, the matter will be resolved through the agreed dispute resolution procedures.
Border Agreements
The autonomous Bougainville Government will have a representative in National Government Delegations engaged in the negotiation of new border agreements with Solomon Islands.
Future border agreements (other than those concerning defence or national security aspects) which affect the jurisdiction of the autonomous Bougainville Government will take effect only by agreement between the National Government and the autonomous Bougainville Government.
Sporting and Trade Missions
The two Governments will consult over appropriate forms of cooperation for Bougainville to participate or engage in international cultural exchanges; trade, investment and tourism promotion; and sport.
Immigration - Visas and Work Permits
The autonomous Bougainville Government may recommend names to the National Government for inclusion on or removal from the Visa Warning List
Applications for Work Permits and Employment Visas for Bougainville will be referred by the relevant National Government agency to the autonomous Bougainville Government for recommendation.
The autonomous Bougainville Government may submit lists of occupations and industries for which Work Permits and Employment Visas should not be issued for Bougainville.
The autonomous Bougainville Government will establish appropriate machinery for implementation, including the sharing of information.
Quarantine
The autonomous Bougainville Government may act as agent for the National Government in providing quarantine services
Fisheries
The National Government will provide for the autonomous Bougainville Government to be represented on:
delegations negotiating access and other fisheries agreements regarding Bougainville waters and waters beyond the guaranteed three nautical mile limit and within the Exclusive Economic Zone and the continental shelf associated with Bougainville territory; and
bodies responsible for determining total allowable catches, licence numbers and reservation of licenses for domestic fishers in such waters.
An agreed formula (based on derivation less costs) will provide for National Government fishing revenues from fishing in those waters to be distributed to the autonomous Bougainville Government.
The autonomous Bougainville Government will decide on the allocation of an agreed quota of domestic fishing licenses for highly migratory and straddling fish stocks.
The autonomous Bougainville Government will be responsible for the sustainable management of other fisheries in Bougainville's waters.
Central Banking Responsibilities
The National Government will makes its best efforts to assist the autonomous Bougainville Government assume powers to supervise non-banking financial institutions.
The National Government will make its best efforts to assist in the establishment of a commercial bank in Bougainville.
As part of the agreed review process, the National Government and the autonomous Bougainville Government will consult on what other central banking responsibilities it might be appropriate for Bougainville to assume after fiscal self-reliance. The National Government will then make its best efforts to assist Bougainville assume those powers agreed upon.
International Civil Aviation, International Shipping, International Trade, and Posts
The National Government will delegate control of aspects of international civil aviation, international shipping, international trade, and posts to the autonomous Bougainville Government, including:
management of non-aviation aspects of airport terminals in Bougainville;
management of postal services;
issuing of Bougainville stamps, provided they display the words "Papua New Guinea"; and
other aspects as may be agreed from time to time.
Telecommunications
The parties agree on the need to facilitate the development of a telecommunications system capable of reaching people throughout Bougainville, and will co-operate to bring about the development of such a system, including such private sector participation as may be appropriate and agreed.
The regulatory and legislative regime, including licensing, administered by PANGTEL will apply to the development of telecommunications in Bougainville, unless the National Government and the autonomous Bougainville Government otherwise agree.
Within the PANGTEL legislative and regulatory regime, the autonomous Bougainville Government may itself or by agreement with a third-party telecommunications carrier provide telecommunications services in Bougainville.
The National Government and the autonomous Bougainville Government will consult with a view to ensuring that Bougainville's interests are taken into account
in respect of privatization or changes to the legislative and regulatory regime for telecommunications; and
if the autonomous Bougainville Government wishes to increase the powers and functions available to it in relation to telecommunications in Bougainville,
bearing in mind available technology, the economic interests of other parts of Papua New Guinea, and relevant aspects of national security.
In the event that the autonomous Bougainville Government sees a need to change existing laws and policy or wishes to assume additional powers and functions in respect of telecommunications, the autonomous Bougainville Government or the National Government may refer the matter to the joint supervisory body.
The joint supervisory body may, by agreement, appoint a panel of experts to prepare a report, bearing in mind the mutual benefits Bougainville and the rest of Papua New Guinea seek to pursue through their joint creation of the agreed autonomy arrangement as a whole.
The membership of the panel will be mutually agreed; the costs will be shared; the report, which will be submitted by an agreed date, may be tabled in the National Parliament and the Bougainville legislature.
Any proposal for a telecommunications carrier in Bougainville to develop its own international links will be subject to the national legislative and regulatory regime.
Any differences between the autonomous Bougainville Government and the National Government over such a proposal or a relevant provision of the legislative and regulatory regime will be resolved through consultation, the expert panel and, if differences persist, through the agreed dispute resolution procedure.
Posted by USIP Library on: April 9 2002
Source Name: Text e-mailed from the Adviser to the Papua New Guinea Government on the Bougainville Peace Process
Date e-mailed: October 31 2001
