Peace Agreements Digital Collection: Bougainville (Papua New Guinea)
Bougainville Peace Agreement
Autonomy (continued)
Judiciary
Bougainville Courts
The National Constitution will be amended to allow the Bougainville Constitution to provide for the establishment within the National Judicial System of courts and tribunals in Bougainville ranging from courts with a similar jurisdiction to Village Courts to a court of similar jurisdiction to the National Court.
The name "National Court" shall not be used for any Court established by Bougainville.
The highest court in Bougainville will have such jurisdiction, consistent with the agreed autonomy arrangements, as may be provided under the Bougainville Constitution.
Jurisdiction of Bougainville Courts
Until Bougainville establishes a court of similar jurisdiction to the National Court with power to hear cases under the Criminal Code, the application and enforcement of the Criminal Code will remain solely with the National Court.
Subject to these arrangements, laws made by the National and Bougainville Governments will be enforceable in one another's courts.
The highest Court established under Bougainville law will have the power to make orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.
The National Government and the autonomous Bougainville Government will consult with a view to legislating for Bougainville courts and tribunals to exercise additional jurisdiction under National law.
Appeals
The highest Bougainville Court may have the power to review the exercise of judicial authority by courts and tribunals established under Bougainville law.
The National Court will remain an alternative court of review and appeal (that is, alternative to the highest appeal court in Bougainville; but not vice-versa)
The Supreme Court of Papua New Guinea will be the final court of appeal for Bougainville.
Interpretation of National Constitutional Provisions and of Bougainville Constitution
The Bougainville Constitution may provide that questions of interpretation of the Bougainville Constitution will be taken directly to the highest Bougainville court, and may be appealed to the Supreme Court.
Questions of interpretation of the agreed autonomy arrangements in the National Constitution or Organic Laws will be taken directly to the National or Supreme Court, as appropriate.
Appointment of Judges for Bougainville Courts
Appointment and removal of Bougainville judges will be non-political, with two representatives of the National Judicial and Legal Services Commission serving on the appointments body
Operation of National Judicial System
The National Judicial System will continue to carry out its responsibilities in Bougainville.
The autonomous Bougainville Government will provide all reasonable assistance to the National Judicial System in the exercise of its functions.
The National and Bougainville Court administrations will cooperate with one another.
Appointments to the National Judiciary will be open to qualified persons from throughout Papua New Guinea.
Phased Implementation Plan
The National Government and the autonomous Bougainville Government will develop and implement a plan for restoring and building the capacity of courts in Bougainville, including courts at village level, as provided in the Lincoln Agreement.
Costs of Establishing Bougainville Courts
The autonomous Bougainville Government will meet the costs of establishing courts of its own above the level of the District Court as well as special tribunals.
Criminal Law
The autonomous Bougainville Government will have power to:
create and set penalties for offences incidental to the exercise of its agreed powers and functions; and
amend the Summary Offences Act and all other laws relating to criminal law as they apply in Bougainville, or to make equivalent laws of its own (the Criminal Code may only be amended as provided in the next paragraph).
The Criminal Code will be adopted by the autonomous Bougainville Government and may only be amended in its application to Bougainville on the following basis:
change to principles of the criminal law shall be evolutionary;
there will be no wholesale changes to the coverage of subjects by the criminal law;
there will be no amendment of the Criminal Code without proper consultation with the National Government;
the autonomous Bougainville Government and the National Government will establish a joint working group on Criminal Law to develop changes that work for both Bougainville and the rest of Papua New Guinea;
amendments to the Criminal Code by the autonomous Bougainville Government will be gazetted but will not come into effect without the agreement of the National Government;
the National Government may require further negotiation should it not accept the proposals for amendments made by the autonomous Bougainville Government; and
the agreed dispute resolution procedures will apply.
In the longer term, the autonomous Bougainville Government may seek to develop its own Criminal Code in consultation with the National Government, which will come into effect only upon the agreement of the National Government.
Regular Reviews of Autonomy Arrangements
The autonomous Bougainville Government and the National Government will jointly review the autonomy arrangements every five years and present the report of the review to the National Parliament and the Bougainville legislature.
The five-yearly, joint review of the autonomy arrangements will follow and consider separate reviews by independent experts of particular aspects, including:
the financial arrangements grants, taxes and progress towards financial self-reliance;
the Bougainville public services and other aspects of public sector administration in Bougainville inclusive of size, efficiency, effectiveness, and related matters;
technical and legal aspects, including issues arising from judicial interpretation, and the distribution of powers and functions; and
such other areas as the autonomous Bougainville Government and the National Government may agree.
The terms of reference for the reviews will specify that, unless otherwise agreed, they are intended to improve, clarify and strengthen the autonomy arrangements consistently with the objectives and principles in this Agreement
The Governments may, by agreement, defer the specialist reviews or incorporate the issues with which they deal in the general review.
The reports of the specialist reviews will include drafts or drafting instructions for the legislative amendments they recommend.
The reports of all reviews will be tabled in the National Parliament and the Bougainville legislature.
In the event that either the National Parliament or the Bougainville legislature passes the amendments proposed according to its own constitutional procedures and the other does not, then the autonomous Bougainville and National Governments will follow the procedures agreed for resolving disputes up to the level of arbitration (points of law may go to the Supreme Court)
The arbitrator(s) cannot give directions to the National Parliament or the Bougainville legislature but may order the Governments to present a report in the National Parliament and the Bougainville legislature recording the views of both Governments and containing their own recommendations on differences between them.
The two Governments may agree to additional reviews of any aspect of the autonomy arrangements at any time.
In addition to the above reviews, the two Governments will hold annual, wide-ranging consultations on the general operation of the autonomy arrangements.
Unless the two Governments agree to some other method, these consultations will be held through the joint supervisory body.
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
