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Papua New Guinea Consolidated Legislation |
No. 0 of 2004.
The Constitution of the Autonomous Region of Bougainville 2004.
Certified on: 21/12/2004.
INDEPENDENT
STATE OF PAPUA NEW GUINEA.
No. 0 of 2004.
The Constitution of the Autonomous Region of Bougainville 2004.
ARRANGEMENT OF SECTIONS.
1. Autonomous Region of Bougainville.
2. Autonomous Bougainville Government.
3. Jurisdiction of the Autonomous Bougainville Government.
4. Symbols of the Autonomous Region of Bougainville.
5. Autonomous Region of Bougainville Capital.
6. Declaration of loyalty to Bougainville.
7. Bougainvillean.
8. Ownership of customary land and elections.
9. Obligations of a Bougainvillean.
10. Schedules repeating certain provisions of National Constitutional Laws.
11. Provisions of this part no-justiciable.
12. Implementation of Objectives.
13. Strengthening of customary authority.
14. Democratic Principles.
15. Pursuit of Peace Rehabilitation, Reconciliation and Harmony.
16. Unity and stability of Bougainville.
17. Autonomy and Territorial integrity of Bougainville.
18. Assistance to institutions protecting and supporting human rights, etc.
19. Fair representation of Women and marginalized groups.
20. Welfare of Windows, Children, Orphans, the Aged and the Disabled.
21. Provision of adequate resources for Government.
22. General social and economic objectives.
23. The land and natural resources.
24. Development.
25. Human Resource Development.
26. Transport Infrastructure.
27. The Environment and Conservation.
28. Recognition of the Role of Women in Bougainville Society.
29. Children and Youth as the future of Bougainville.
30. Recognition of the dignity of persons with disabilities.
31. Music, the arts and sports.
32. Education Objectives.
33. Medical Services and Health care.
34. HIV/Aids.
35. Partnership with Churches, Local Non-Government Organisations and other organisations.
36. Natural Disasters.
37. Cultural Objectives.
38. Accountability.
39. Rights of Workers and Employees.
40. Structure and Levels of Government.
41. Autonomous Bougainville Government.
42. Functions and powers of the Autonomous Bougainville Government.
43. Factors to be considered by Autonomous Bougainville Government before requesting a transfer of a function or power, etc.
44. Land Matters.
45. Criminal Law.
46. Foreign Affairs.
47. Fisheries.
48. Underlying Law.
49. Other Levels of Formal Government.
50. Regional Government.
51. Traditional Systems of Government.
52. Advisory Body.
53. Bougainville Legislature.
54. Exercise of Legislature.
55. Establishment and Composition of the house of representatives.
56. Qualifications for and disqualifications from election.
57. Normal Term of Office.
58. Recall of Member of the House of representatives.
59. Offices of Speaker and Deputy Speaker.
60. Speaker.
61. Removal from Office of Speaker.
62. Deputy Speaker.
63. Functions of the Deputy Speaker and Deputy Speaker.
64. Voting by the Speaker.
65. General Law-making powers.
66. Certification as to making of Laws, etc.,.
67. Right to Introduce New Laws.
68. Meetings of the House of Representatives.
69. Quorum at Meetings.
70. Voting in the House of Representatives.
71. Committees.
72. Standing Orders of the House of Representatives.
73. Privileges, etc., of the House of Representatives.
74. International Agreements.
75. Proceedings non-justifiable.
76. Questions as to Membership.
77. Validation of Acts of the House of Representatives.
78. Clerks and Officers of the House of Representatives.
79. Exercise of the Executive Power.
80. Membership of the Bougainville Executive Council.
81. Representatives of Regions.
82. Caretaker Bougainville Executive Council.
83. Appointment of Other Members.
84. Assumption of Office by Members of the Bougainville Executive Council.
85. Responsibilities.
86. Procedures.
87. Delegation by the Bougainville Executive Council, etc.
88. Office of President.
89. Eelction of President.
90. Special Election of President.
91. Qualifications for and Disqualififcations from Election as President.
92. Assumption of Office.
93. Functions of the President.
94. Vacation of Office of President.
95. Office of Vice-President.
96. Appointment of Vice President.
97. Assumption of Office.
98. Functions of the Vice-President.
99. Interpretation of Division 5.
100. Vacation of Office of Members of the Bougainville Executive Council.
101. Dismissal of Members of the Bougainville Executive Council.
102. Bougainville Senior Appointments Committee.
103. Part time Appointments.
104. Bougainville Boundaries Commissioner.
105. Constituencies.
106. Bougainville Electoral Commissioner and Elections Generally.
107. Bougainville General Elections.
108. By-Elections.
109. Form of Elections.
110. Right to Vote.
111. Political Parties.
112. Bougainville Courts.
113. The Law Officers of Bougainville.
114. Exercise of the Judicial Power.
115. Alternative Dispute Resolution.
116. Establishment of the Bougainville High Court.
117. Composition of the Bougainville High .
118. Acting Judges.
119. Jurisdiction of the Bougainville High Court.
120. Right of Appeal from Bougainville High Court to Supreme Court.
121. Bougainville Judicial Appointments Committee.
122. Qualification.
123. Appointment of Chief Justice of Bougainville.
124. Appointment of Other Judges.
125. Seniority of Judges.
126. Establishment of Other Courts.
127. Head of Other Bougainville Courts.
128. Bougainville Public Prosecutor and Bougainville Public Solicitor.
129. Functions of the Bougainville Public Prosecutor and the Bougainville Public Solicitor.
130. Removal from Office of Chief Justice of Bougainville, etc.,.
131. Procedures for Removal.
132. Constitution of Tribunals, etc.,.
133. Suspension.
134. Rules of Court.
135. Lack of Procedural Provision.
136. Juries and Assessors.
137. Reports of Bougainville Judges.
138. Establishment of Bougainville Government Services.
139. Civilian Control.
140. Responsibility of Heads of Bougainville Government Services to Bougainville Executive Council.
141. Declaration of Loyalty etc.,.
142. Establishment of the Bougainville Public Services Commission.
143. Functions of the Commission.
144. Independence of the Commission.
145. Personnel Matters.
146. Bougainville Public Service.
147. Head of Bougainville Public Service.
148. Bougainville Police Service.
149. Chief of Bougainville Police.
150. Further provisions relating to Bougainville Police Service.
151. Bougainville Correctional Service.
152. Chief of the Bougainville Correctional Service.
153. General principles relating to finances and financial management.
154. Outline of Finances of Autonomous Bougainville Government and Finance Administration.
155. Financial responsibility of the House of Representatives.
156. Executive Initiative.
157. Revenue and Expenditure without prior approval.
158. Establishment of office of Bougainville Auditor-General.
159. Functions of the Bougainville Auditor-General.
160. Establishment of the Public Accounts Committee.
161. Functions of the Committee.
162. The Bougainville Salaries and Remuneration Commission.
163. Functions, etc., of the Commission.
164. Functions of National Salaries and Remuneration Commission.
165. The Bougainville Ombudsman.
166. Purposes of the Bougainville Ombudsman.
167. Functions and Powers of the Bougainville Ombudsman.
168. Reports by the Bougainville Ombudsman.
169. Application of Leadership Code.
170. Customary standards of leadership.
171. Other responsibilities of office.
172. Particular responsibilities of office.
173. Further provisions concerning the leadership code.
174. Prosecution for misconduct in office.
175. Investigation and Prosecution may be carried out where person no longer holds office.
176. Disqualifications on Dismissal.
177. Powers of Bougainville ombudsman in relation to criminal misconduct.
178. Basic rights.
179. Additional Rights.
180. Qualifications on the qualified rights.
181. Reasonably justifiable in a Democratic Society.
182. Validity of emergency legislation.
183. Enforcement of Guaranteed Rights and Freedoms.
184. Damages for breach of rights.
185. Human rights enforcement body.
186. Customary methods of dealing with Human Rights abuses.
187. Issues arising from the Bougainville conflict.
188. Other provisions relating to Bougainville Constitutional Officer-holders and Bougainville Constitutional Institutions.
189. Bougainville Constitutional Office-holders.
190. Removal from office of certain Bougainville Constitutional Office-Holders.
191. Bougainville Constitutional Institutions.
192. Provision of Facilities, etc.
193. Bougainville Referendum.
194. Procedure in relation to the Bougainville Referendum.
195. Consultation through plebiscite.
196. Participation in, and poll for, law making.
197. Definitions.
198. General approach to certain emergencies.
199. Declarations of emergency generally.
200. Declaration, etc., of Bougainville emergency.
201. Declaration, etc., of National Emergency at request of Autonomous Bougainville Government.
202. Request for revocation of declaration, etc., where National Emergency declared other than at the request of the Autonomous Bougainville Government.
203. House of Representatives Control.
204. Management and control of emergencies.
205. Principles of Intergovernmental Relations, etc.
206. Supremacy of the Constitution.
207. Alteration of this Constitution.
208. Evolution of this Constitution and of the Autonomous Bougainville Government.
209. Interpretative Jurisdiction.
210. Special references to Bougainville High Court.
211. Special status of the Preamble.
212. Construction of the Constitution generally.
213. Construction of Bougainville Laws.
214. Use of certain materials as aids to interpretation.
215. Enforcement of this Constitution.
216. Accessibility of the Constitution.
217. Requirements for amendment of Part XIV (Bougainville Government and Bougainville Referendum) of the National Constitution, etc.
218. National Constitutional Regulations.
219. Making of alterations to this Constitution.
220. Review of this Constitution, etc.
221. Legal capacity of Autonomous Bougainville Government.
222. Bougainville Constitutional Regulations.
223. Public purposes.
224. Transitional provisions contained in Organic Law.
225. Application of other laws.
226. Bougainville Gazette.
227. Effect of this Part.
228. Purposes of this Part.
229. Interpretation.
230. Existing facilities and personnel to be used where practicable.
231. Bougainville Interim Provincial Government in consultation with the Bougainville People’s Congress may issue directions, etc., in certain circumstances.
232. Interim Bougainville Gazette.
233. First Bougainville General Election Boundaries Director.
234. Constituencies for First Bougainville General Election.
235. First Bougainville General Election Manager.
236. First Bougainville general election.
237. Interim Registration of Political Parties.
238. Disputed elections and returns arising from First Bougainville general elections.
239. Calling of First Meeting of the House of Representatives.
240. Executive Officer of the House of Representatives.
241. Interim Arrangements in relation to Institutions, Offices, etc.
INDEPENDENT STATE OF PAPUA NEW GUINEA.
AN ACT
entitled
The Constitution of the Autonomous Region of Bougainville 2004,
Being an Act to
Preamble
WE, THE PEOPLE OF BOUGAINVILLE, under the sovereignty of God
Conscious of the noble heritage and customs of our Ancestors and of the freedom and autonomy which they enjoyed in time immemorial;
Mindful of the restrictions wrought on our freedom, autonomy and customs by colonial aggression, foreign influences and the devastation of foreign wars;
Proud of our long struggle to free ourselves from adverse colonial and foreign influences and to renew our freedom, autonomy and customs;
Chastened by internal conflict that arose during our struggle for freedom;
Recognizing the sacrifice of Bougainvilleans for the causes of autonomy and self-determination;
Heartened by the process of healing, reconciliation and unity pursued during the years of conflict and thereafter;
WE, THE PEOPLE OF BOUGAINVILLE under the sovereignty of God our Father believing and trusting in HIM do now, with His guidance and blessing, hail the dawn of a new era of government for Bougainville to enable us with His help –
(a) to uphold Christian and similar moral and spiritual principles; and
(b) to honour our heritage and ancestral spirits and our worthy customs and traditions; and
(c) to provide for the self-determination of the People through both autonomy arrangements and the referendum on independence; and
(d) to recognize the sovereignty of the People; and
(e) to recognize the autonomy of family and clan lineages and other customary communities; and
(f) to govern through democracy, accountability, equality and social justice; and
(g) to protect the land, the sea, our environment and our cultural identity for present and future generations; and
(h) to strive to eliminate universal problems in Bougainville of poverty, illiteracy, corruption, pollution, unemployment, overpopulation and other ills; and
(i) to meet the obligations of Bougainvilleans under this Constitution and in particular to uphold this Constitution with dignity and integrity; and
(j) to provide for the legislative, executive and judicial powers of the People of Bougainville to be vested in the respective arms of an Autonomous Bougainville Government;
WE, THE PEOPLE OF BOUGAINVILLE ACTING UNDER THE AUTHORITY OF OUR TRADITIONAL CLAN SYSTEM AND LEADERSHIP DO NOW THEREFORE DECLARE
that we, having resolved to enact a Constitution for the Autonomous Region of Bougainville,
AND ACTING with the guidance of God through decision of our representatives in the Bougainville Constituent Assembly on the Twelfth day of November 2004, following consultation with the People through our Bougainville Constitutional Commission HEREBY, under the authority of the Bougainville Peace Agreement as implemented in Part XIV (Bougainville Government and Bougainville Referendum) of the National Constitution, ESTABLISH, ADOPT AND GIVE TO OURSELVES this Constitution –
to come into effect in the following manner:–
on the day following the date of publication of this Constitution in the National Gazette following its endorsement by the Head of State, acting with, and in accordance with, the advice of the National Executive Council, Part XXV (First Bougainville General Election and First Meeting of House of Representatives) shall come into operation, together with such other provisions as are necessary to enable the first general election of the President and members of the House of Representatives to take place; and
on the day fixed for the return of the writs in the first general election of the President and members of the House of Representatives, the remainder of this Constitution shall come into operation
MADE by the National Parliament.
PART 1. – BOUGAINVILLE.
1. AUTONOMOUS REGION OF BOUGAINVILLE.
(a) the areas of land within the boundaries specified in Schedule 3 (the boundaries of Bougainville Province specified in the Schedule to the National Organic Law on Provincial Boundaries) to this Constitution; and
(b) the areas of sea extending to three nautical miles from the low water mark of the areas of land referred to in Paragraph (a).
(2) Bougainville shall be known –
(a) formally, as “The Autonomous Region of Bougainville”; and
(b) otherwise, as “Bougainville”.
(3) The Autonomous Bougainville Government will keep under review the question of the name of Bougainville and whether any change should be made to it.
(4) The Autonomous Bougainville Government may consult with the National Government in accordance with the Bougainville Peace Agreement concerning an extension of Bougainville’s maritime boundaries.
2. AUTONOMOUS BOUGAINVILLE GOVERNMENT.
3. JURISDICTION OF THE AUTONOMOUS BOUGAINVILLE GOVERNMENT.
4. SYMBOLS OF THE AUTONOMOUS REGION OF BOUGAINVILLE.
(a) a Bougainville Flag;
(b) a Bougainville Emblem;
(c) a Bougainville Motto;
(d) a Bougainville Seal;
(e) a Bougainville Pledge;
(f) a Bougainville Anthem;
(g) a Bougainville style of dress;
(h) symbols, awards, holidays or days of celebration, fitting to symbolize the Autonomous Region of Bougainville or to honour persons, places or events relating to the Autonomous Region of Bougainville or to the Autonomous Bougainville Government.
(2) Wherever possible, the symbols of Bougainville provided for in Subsection (1) shall be of a character and kind unique to Bougainville.
5. AUTONOMOUS REGION OF BOUGAINVILLE CAPITAL.
(2) The choice of the location of the capital and the planning of its development should take full account of the need to ensure that the capital does not contribute to the development of the universal problems and ills referred to in Paragraph (h) of the Preamble and is as accessible as possible to the People.
6. DECLARATION OF LOYALTY TO BOUGAINVILLE.
(2) A person appointed to an office established by this Constitution or as otherwise required by a Bougainville law, shall, before entering upon the duties or exercising any of the powers of his office, make the Declaration of Loyalty to Bougainville.
(3) A Declaration of Loyalty to Bougainville shall be made before a Judge of the Bougainville High Court, a Judge of the National Court or a Magistrate.
7. BOUGAINVILLEAN.
(a) who is a member (whether by birth or by adoption according to custom by the clan lineage) of a Bougainvillean clan lineage (matrilineal or patrilineal) owning customary land in Bougainville; or
(b) who is married (whether by law or custom) to a person to whom Paragraph (a) applies; or
(c) who is a child one of whose parents is a Bougainvillean by virtue of Paragraph (a),
is a Bougainvillean.
(2) A Bougainville law, made by an absolute majority vote, may make provision for the alleviation of special cases of injustice or hardship or disadvantage arising as a result of the application of Subsection (1)(c).
(3) For the purposes of Subsection (1)(a), a person who was not born in Bougainville, or who is not of Bougainvillean descent or who is a non-citizen may be adopted as a member of a Bougainville clan according to custom.
(4) A Bougainville law, made by an absolute majority vote, shall make provision for all or any matters relation to this section including –
(a) the nature of providing evidence of customary practices; and
(b) the nature of providing evidence of birth outside Papua New Guinea; and
(c) all matters relevant to the consequences of dissolution of a marriage involving a person to whom Subsection (1) refers; and
(d) all other matters arising from the provisions of this section.
8. OWNERSHIP OF CUSTOMARY LAND AND ELECTIONS.
(a) in accordance with custom, may own customary land in Bougainville; and
(b) who is a citizen, may be a candidate in any election to the House of Representatives and any other elected body established by or under this Constitution; and
(c) who is a citizen, may vote in any election referred to in Paragraph (b).
(2) A Bougainville law, made by an absolute majority vote, may make provision for a citizen, who is not eligible under Subsection (1)(b) to be a candidate for election or who is not eligible under Subsection (1)(c) to vote, but who has such residential or other qualifications as are set out in the law, to be a candidate for election or to vote.
9. OBLIGATIONS OF A BOUGAINVILLEAN.
(a) to be loyal to Bougainville and to protect its well-being; and
(b) to uphold all Christian and similar moral and spiritual principles; and
(c) to promote reconciliation and healing throughout Bougainville; and
(d) to respect, to act in the spirit of, to uphold and to defend this Constitution; and
(e) to engage in gainful work for the good of himself, his family and the common good; and
(f) to contribute to the well-being of the community where that Bougainvillean lives; and
(g) to promote responsible parenthood; and
(h) to live in harmony with others; and
(i) to promote democracy and the rule of law; and
(j) to protect and manage the land and to protect the environment and his culture; and;
(k) as a child, to obey his parents.
(2) The provisions of Subsection (1) are non-justiciable.
PART 2. – SCHEDULES REPEATING CERTAIN PROVISIONS OF NATIONAL CONSTITUTIONAL LAWS.
10. SCHEDULES REPEATING CERTAIN PROVISIONS OF NATIONAL CONSTITUTIONAL LAWS.
(a) set out certain provisions of National Constitutional Laws which implement parts of the Bougainville Peace Agreement; and
(b) are included in this Constitution for ease of reference only; and
(c) shall, where any amendment to the National Constitutional Laws in respect of those provisions is made by the National Parliament in accordance with Division XIV.9 (Miscellaneous) of the National Constitution, be deemed to be amended accordingly; and
(d) shall not otherwise be amended.
(2) The Schedules to this Constitution which set out certain provisions of National Constitutional Laws which implement parts of the Bougainville Peace Agreement are as follows: –
(a) Schedule 3 (the boundaries of Bougainville Province specified in the Schedule to the Organic Law on Provincial Boundaries);
(b) Schedule 4 (National Constitution provisions relating to functions and powers of the Autonomous Bougainville Government);
(c) Schedule 6.1 (National Constitution provisions relating to immunity from prosecution);
(d) Schedule 7 (National Constitution provisions relating to the Bougainville Referendum);
(e) Schedule 8 (National Constitution provisions relating to intergovernment relations and review);
(f) Schedule 9 (Transitional provisions in the Organic Law on Peace-Building in Bougainville – Autonomous Bougainville Government and Bougainville Referendum).
PART 3. – BOUGAINVILLE OBJECTIVES AND DIRECTIVE.
11. PROVISIONS OF THIS PART NO-JUSTICIABLE.
12. IMPLEMENTATION OF OBJECTIVES.
(a) in applying or interpreting this Constitution; and
(b) in making and in implementing policy decisions; and
(c) in making laws,
but always so as to be in compliance with the Bougainville Peace Agreement as implemented in Part XIV (Bougainville Government and Bougainville Referendum) of the National Constitution.
(2) The President shall, at least once in each year, report to the House of Representatives on all steps taken to ensure the realization of the Bougainville Objectives and Directive Principles, and the House of Representatives shall thereafter debate on the report and in so doing should seek to identify ways in which implementation by the Autonomous Bougainville Government might be made more effective.
13. STRENGTHENING OF CUSTOMARY AUTHORITY.
(2) The roles, responsibilities and authority of traditional chiefs and other traditional leaders shall be recognized at all levels of government.
(3) The family and the clan shall be recognized as the natural and basic units of Bougainville society.
(4) The customary system of justice in Bougainville based on the restoration of peace through the restoration of harmony in relationships between people shall be recognised and reinforced to the extent not contrary to Christian principles.
14. DEMOCRATIC PRINCIPLES.
(2) All Bougainvilleans shall have the opportunity to attain leadership positions at all levels subject to this Constitution and customary practices.
(3) The Autonomous Bougainville Government shall devolve governmental functions and powers to the People at appropriate levels and particularly to customary communities.
(4) The composition of the Autonomous Bougainville Government shall be broadly representative of the Bougainville community.
(5) The Autonomous Bougainville Government shall develop procedures to enable consultation with all people in Bougainville, as far as is practicable, in relation to proposed major new Bougainville laws.
15. PURSUIT OF PEACE REHABILITATION, RECONCILIATION AND HARMONY.
(2) There shall be established and encouraged institutions and procedures for the promotion of mediation, reconciliation and harmony and the avoidance and resolution of conflicts.
(3) All people in Bougainville –
(a) shall not be involved in any para-military activities; and
(b) shall work towards ensuring that Bougainville is free of all firearms and of crime.
(4) The Autonomous Bougainville Government shall strive to ensure that Bougainville is not used in any way to support terrorism or money-laundering or other trans-national crimes and no people in Bougainville should support or assist terrorism or money-laundering or other trans-national crimes.
(5) Rehabilitation for persons who suffered from injuries and trauma and dislocation during the Bougainville conflict shall be encouraged.
(6) When planning their activities in Bougainville, Bougainville governmental bodies and non-governmental bodies and investors shall be encouraged to take account of the need for rehabilitation of persons who suffered from injuries and trauma and dislocation during the Bougainville conflict.
16. UNITY AND STABILITY OF BOUGAINVILLE.
(2) Every effort will be made to integrate all the communities in Bougainville while recognising and respecting cultural diversity.
(3) Everything shall be done to promote among all people in Bougainville a culture of co-operation, understanding, appreciation, tolerance and respect for different customs, traditions and beliefs.
(4) The Autonomous Bougainville Government shall provide a peaceful, secure and stable political environment for economic and social development.
17. AUTONOMY AND TERRITORIAL INTEGRITY OF BOUGAINVILLE.
(2) The Autonomous Bougainville Government and all people in Bougainville shall endeavour to strengthen political, economic and social spheres to avoid undue dependence on places and institutions outside Bougainville.
(3) The Autonomous Bougainville Government shall encourage self-sufficiency and to this end shall encourage the creation of economic opportunities for Bougainvilleans.
(4) The Autonomous Bougainville Government shall endeavour to mobilise, organize and empower all people in Bougainville to build self-reliant foundations for the development of Bougainville.
18. ASSISTANCE TO INSTITUTIONS PROTECTING AND SUPPORTING HUMAN RIGHTS, ETC.
(2) The Autonomous Bougainville Government shall guarantee and respect the independence of non-governmental organizations which protect, promote and advance human rights.
19. FAIR REPRESENTATION OF WOMEN AND MARGINALIZED GROUPS.
20. WELFARE OF WINDOWS, CHILDREN, ORPHANS, THE AGED AND THE DISABLED.
21. PROVISION OF ADEQUATE RESOURCES FOR GOVERNMENT.
22. GENERAL SOCIAL AND ECONOMIC OBJECTIVES.
(a) all governmental efforts are directed at ensuring the maximum social, cultural and spiritual well-being of all people in Bougainville; and
(b) all people in Bougainville enjoy rights and opportunities and access to education, health services, clean and safe water, work, decent shelter, adequate clothing and food security.
23. THE LAND AND NATURAL RESOURCES.
(2) The utilization of the land and the sea and natural resources of Bougainville shall be managed in such a way as to meet the development and environmental needs of present and future generations of the People of Bougainville and the Autonomous Bougainville Government shall take all possible measures to prevent or minimize damage and destruction to land, seas, air and water resources from pollution or other causes.
24. DEVELOPMENT.
(2) The Autonomous Bougainville Government and all other levels of government, formal and informal, shall take all necessary steps to involve all people in Bougainville in the identification of their real development needs and the formulation and implementation of development plans and programmes which affect them, and all people in Bougainville shall support such plans and programmes and shall, where necessary, make land available for the provision of services and other development purposes.
(3) The Autonomous Bougainville Government shall –
(a) adopt an integrated and co-ordinated planning approach to development; and
(b) take necessary measures to bring about appropriate balanced development of the different areas of Bougainville; and
(c) take special measures in favour of the development of the least developed areas.
(4) The Autonomous Bougainville Government shall –
(a) give priority to the enactment of legislation to establish measures to protect and enhance the quality of opportunity for all people in Bougainville to equal opportunities in development; and
(b) adopt policies to stimulate appropriate development.
(5) The Autonomous Bougainville Government shall develop procedures to enable Bougainvilleans likely to be affected by a proposed major development project to be consulted by the Autonomous Bougainville Government and by the developer before a decision on the establishment of the project is made.
25. HUMAN RESOURCE DEVELOPMENT.
26. TRANSPORT INFRASTRUCTURE.
27. THE ENVIRONMENT AND CONSERVATION.
(2) The Autonomous Bougainville Government shall promote and implement energy policies that will ensure that the basic needs of all people in Bougainville and those of environmental preservation are met.
(3) The Autonomous Bougainville Government shall pursue protection of the environment and the restoration of damage caused by mining operations and other major resource projects.
(4) The Autonomous Bougainville Government shall ensure protection of the flora and fauna of Bougainville.
28. RECOGNITION OF THE ROLE OF WOMEN IN BOUGAINVILLE SOCIETY.
29. CHILDREN AND YOUTH AS THE FUTURE OF BOUGAINVILLE.
30. RECOGNITION OF THE DIGNITY OF PERSONS WITH DISABILITIES.
31. MUSIC, THE ARTS AND SPORTS.
32. EDUCATION OBJECTIVES.
(a) universal primary, secondary, and adult education; and
(b) the provision, from elementary and primary level, of the widest possible range of technical education (relevant to the needs of Bougainville from time to time); and
(c) appropriate levels of tertiary education, of the highest possible standard, and directed to enable all students to participate fully in the lives of the Bougainville communities to which they belong, and in pursuing those objectives, the Autonomous Bougainville Government should work in partnership with other bodies involved in the provision of education services in Bougainville.
(2) One of the aims of the education system should be to ensure that all children, throughout the primary and secondary levels of education, are taught to read and write in their vernacular and are taught about their own culture.
(3) The Autonomous Bougainville Government shall consult on an ongoing basis with traditional chiefs, other traditional leaders and other community leaders about the development and effectiveness of the curriculum in all levels and kinds of education.
33. MEDICAL SERVICES AND HEALTH CARE.
(a) to promote primary health care; and
(b) to pursue universal health care of the highest standard; and
(c) to ensure the provision of basic medical services to the population; and
(d) to promote water and sanitation management systems at all levels; and
(e) to encourage people to grow and store adequate food; and
(f) to encourage and promote proper nutrition, particularly for the young and the people of the Atolls, through mass education and other means; and
(g) to recognize herbal medicines,
and in pursuing those objectives, the Autonomous Bougainville Government should work in partnership with other bodies involved in the pursuit of those objectives in Bougainville.
34. HIV/AIDS.
35. PARTNERSHIP WITH CHURCHES, LOCAL NON-GOVERNMENT ORGANISATIONS AND OTHER ORGANISATIONS.
(2) The Autonomous Bougainville Government should maintain and develop a close relationship with the business sector in the development of the economy and of employment opportunities in Bougainville.
36. NATURAL DISASTERS.
37. CULTURAL OBJECTIVES.
(2) The development, preservation and enrichment of all Bougainville languages shall be encouraged.
(3) Historical and ancestral sites, significant artefacts and Bougainville’s heritage shall be preserved and protected.
38. ACCOUNTABILITY.
(2) All persons in positions of leadership and responsibility are, in their work, answerable to the People in accordance with law.
(3) The Autonomous Bougainville Government shall take all lawful measures to ensure accountability in Government and to expose and eradicate corruption and abuse or misuse of power.
39. RIGHTS OF WORKERS AND EMPLOYEES.
PART 4. – STRUCTURE OF GOVERNMENT.
Division 1.
General.
40. STRUCTURE AND LEVELS OF GOVERNMENT.
(a) the Autonomous Bougainville Government in accordance with Division 2 (Autonomous Bougainville Government); and
(b) a level or levels of formal government below the level of the Autonomous Bougainville Government in accordance with Division 3 (other levels of formal government); and
(c) the traditional system of government in accordance with Division 4 (traditional system of government).
Division 2.
Autonomous Bougainville Government.
41. AUTONOMOUS BOUGAINVILLE GOVERNMENT.
(a) the Bougainville Peace Agreement as implemented in Part XIV (Bougainville Government and Bougainville Referendum) of the National Constitution; and
(b) this Constitution,
the power, authority and jurisdiction of the People of Bougainville shall be exercised, on behalf of the People, by the Autonomous Bougainville Government.
(2) The Autonomous Bougainville Government consists of three principal arms, namely –
(a) the Bougainville Legislature consisting of the House of Representatives as established under Section 55 (establishment and composition of the House of Representatives); and
(b) the Bougainville Executive Council, for which provision is made in Part 6 (the Bougainville Executive); and
(c) the Bougainville Courts, for which provision is made in Part 9 (Administration of Justice),
and such other institutions as are established by or under this Constitution.
(3) In principle, the respective powers and functions of the three principal arms shall be kept separate from each other.
(4) Subsection (3) is descriptive only and is non-justiciable.
42. FUNCTIONS AND POWERS OF THE AUTONOMOUS BOUGAINVILLE GOVERNMENT.
(2) The Autonomous Bougainville Government may establish such institutions as are necessary to enable it to fulfil its functions and exercise its powers.
43. FACTORS TO BE CONSIDERED BY AUTONOMOUS BOUGAINVILLE GOVERNMENT BEFORE REQUESTING A TRANSFER OF A FUNCTION OR POWER, ETC.
(a) initiating the procedure for the transfer of a function or power under Section 295(b) (process of transfer of functions and powers) of the National Constitution; or
(b) making legislative provision for plebiscites under Section 195 (consultation through plebiscite); or
(c) conducting a plebiscite under Section 195 (consultation through plebiscite); or
(d) making legislative provision for participation in, and poll for, law-making under Section 196 (participation in, and poll for, law-making); or
(e) engaging in the consultation to be carried out under Section 196(2)(c) (participation in, and poll for, law-making) following the making of a proposal to make a law; or
(f) establishing an institution or office (including a Bougainville Government Service) left by this Constitution to the discretion of the House of Representatives (including the duty imposed on the Autonomous Bougainville Government by Section 192 (provision of facilities, etc.,) to ensure that staff and facilities are provided to Bougainville Constitutional Institutions and Bougainville Constitutional Office-holders); or
(g) the appointment, under Section 83 (appointment of other members), of members of the Bougainville Executive Council referred to in Section 80(1)(f) (membership of the Bougainville Executive Council); or
(h) the establishment of a system of assessors under Section 136(a) (juries and assessors); or
(i) the establishment of a system of juries under Section 136(b) (juries and assessors),
the Autonomous Bougainville Government shall –
(j) consider the relative importance to the People of Bougainville of the issue in question; and
(k) consider the need for the Autonomous Bougainville Government to achieve fiscal self-reliance as soon as possible; and
(l) consider the need to promote economic development so as to accelerate the achievement of fiscal self-reliance and promote the well-being of the People of Bougainville; and
(m) consider the desire of the People of Bougainville for a peaceful and harmonious society; and
(n) consider the need to develop the capacity of the administration of the Autonomous Bougainville Government to the point at which it can manage effectively the widest possible range of powers, functions, plebiscites and polls for the betterment of the lives of the People of Bougainville; and
(o) consider the need to promote reconciliation and healing following the Bougainville conflict; and
(p) consider the possible role of traditional chiefs and other traditional leaders in relation to the issue in question; and
(q) consider whether offices in an institution or office referred to in Paragraph (f) should be filled on a part-time or full-time basis.
(2) The question as to whether the matters referred to in Subsection (1)(i) to (q) have been considered or taken account of fully, as the case may be, is non-justiciable.
(3) Where a proposal to effect the matters referred to in Subsection (1)(b), (d), (f), (g), (h) or (i) is initiated –
(a) by the Bougainville Executive Council – the proposal shall be accompanied by a statement of the estimated needs, costs, capacity and other resource requirements as specified in Subsection (1)(i) to (q); or
(b) by a member of the House of Representatives – the proposal shall not be considered until the presentation of a statement (which shall be provided, on the request of the member, by the Autonomous Bougainville Government, within a time specified in a Bougainville law) of the estimated needs, cost, capacity and other resource requirements as specified in Subsection (1)(i) to (q).
(4) The provisions of this section are in addition to, and do not derogate from, the provisions of Division XIV.3 (division of functions and powers between National Government and Bougainville Government and transfer of functions and powers to Bougainville Government) of the National Constitution.
44. LAND MATTERS.
(a) as far as is practicable, recognise the roles of traditional chiefs, other traditional leaders and owners of customary land in relation to customary land matters; and
(b) as far as is practicable, incorporate customary practices and norms into the development and implementation of land law in Bougainville; and
(c) formulate strategies in relation to alienated land; and
(d) provide for records of land ownership; and
(e) provide for the protection of the customary powers of heads of matrilineal and patrilineal societies and of customary owners in relation to customary land.
(2) In developing a land policy under Subsection (1), the Autonomous Bougainville Government shall ensure that its proposals comply with Section 53 (protection from unjust deprivation of property) of the National Constitution.
45. CRIMINAL LAW.
(a) take full account of and encourage continued reliance on the roles of traditional chiefs and other traditional leaders in resolving disputes and criminal matters at the village or local level; and
(b) incorporate customary practices and norms into the development and implementation of criminal law in Bougainville.
(2) In accordance with Paragraphs 128 to 130 of the Bougainville Peace Agreement, the Autonomous Bougainville Government and the National Government shall establish a joint commission to examine and report on the issues involved in giving the Autonomous Bougainville Government power to make laws permitting courts or Councils of Elders to require clan-groups, to which persons convicted of criminal offences belong, to meet customary non-custodial obligations, and such commission shall have full regard for –
(a) the aspiration of Bougainvilleans for the integration of custom and introduced law; and
(b) the national human rights regime; and
(c) the justice system in Bougainville and in Papua New Guinea as a whole; and
(d) the international human rights system and other relevant aspects of international law.
46. FOREIGN AFFAIRS.
(a) the attendance of a representative of Bougainville as an observer to meetings of regional organizations; or
(b) the inclusion of a representative nominated by the Autonomous Bougainville Government in National Government delegations to regional meetings and organizations of clear special interest to Bougainville; or
(c) the participation or direct engagement of the Autonomous Bougainville Government in the negotiation of international agreements of particular relevance to Bougainville; or
(d) the participation or engagement by Bougainville in international cultural exchanges and in trade, investment, tourism promotion and sport at international level; or
(e) the obtaining, by or on behalf of the Autonomous Bougainville Government, of foreign aid to support restoration and development in Bougainville,
it shall consult with the National Government in accordance with the Bougainville Peace Agreement.
47. FISHERIES.
(a) develop a policy or policies for developing and managing fisheries in Bougainville; and
(b) agree with the National Government on the quota of domestic fishing licences for highly migratory and straddling fish stocks; and
(c) decide on the allocation of the agreed quota of domestic fishing licences for highly migratory and straddling fish stocks; and
(d) be responsible for the sustainable management of other fisheries in the Autonomous Region of Bougainville; and
(e) consult with the National Government in accordance with the Bougainville Peace Agreement to be represented on –
(i) delegations negotiating access and other fisheries agreements regarding; and
(ii) bodies responsible for determining total allowable catches, licence numbers and reservation of licences for domestic fisheries in,
Bougainville waters and within the Exclusive Economic Zone and the continental shelf associated with Bougainville.
48. UNDERLYING LAW.
(2) A Bougainville law may –
(a) declare what constitutes the underlying law of the Autonomous Region of Bougainville; and
(b) provide for the development of the underlying law of the Autonomous Region of Bougainville,
and the underlying law referred to in Subsection (1) shall be modified or re-affirmed or developed accordingly.
Division 3.
Other levels of formal Government.
49. OTHER LEVELS OF FORMAL GOVERNMENT.
(2) The Councils of Elders in existence immediately before the coming into operation of this Constitution are recognized by this Constitution as a level of formal government below the level of the Autonomous Bougainville Government.
(3) In developing a level or levels of formal government under Subsection (1), the Bougainville Executive Council shall take into account the methods of government which will best serve the People of Bougainville and the variations in circumstances and needs in various parts of Bougainville.
(4) In principle, the following factors shall apply to and in respect of a level or levels of formal government below the level of the Autonomous Bougainville Government: –
(a) formal governments shall be mainly elective, but shall recognize the traditional role in governance of traditional chiefs and other traditional leaders;
(b) the principles of fiscal self-reliance shall apply to all levels of formal government;
(c) revenue-raising powers shall be given to all levels of formal government;
(d) judicial powers shall be vested in all levels of formal government;
(e) where appropriate and practicable, traditional systems of governance shall be incorporated into levels of formal government.
(5) The Autonomous Bougainville Government shall strive to ensure and encourage communication and co-operation between –
(a) itself and all levels of formal government below the level of the Autonomous Bougainville Government; and
(b) all levels of formal government below the level of the Autonomous Bougainville Government,
and to this end shall hold an annual conference of the Heads of all levels of formal Governments.
50. REGIONAL GOVERNMENT.
(a) North Region;
(b) Central Region;
(c) South Region,
and may thereafter divide the level of Regional Government into further Regions.
(2) The questions whether, under Subsection (1), it is financially practicable and possible to develop a level of Regional Government, are non-justiciable.
(3) The level of Regional Government shall be provided for by amendment of this Constitution or by a Bougainville law (or partly by amendment of this Constitution and partly by a Bougainville law).
(4) Amendment of this Constitution or a Bougainville law shall provide –
(a) that the procedures to establish a Regional Government for a Region shall be initiated by a request made to the Bougainville Executive Council by a majority of the members of the House of Representatives representing constituencies in that Region; and
(b) that on the receipt of a request under Paragraph (a), the Bougainville Executive Council and the members of the House of Representatives representing constituencies in that Region shall –
(i) jointly consider –
(A) the financial capacity of the region; and
(B) the powers and functions drawn down from the National Government; and
(C) the impact which the establishment of the Regional Government would have on Bougainville as a whole; and
(ii) jointly decide whether there should be a Regional Government for the Region; and
(c) make provision for the establishment, powers and functions of a Regional Government.
Division 4.
Traditional Systems of Government.
51. TRADITIONAL SYSTEMS OF GOVERNMENT.
(2) The roles and responsibilities of traditional chiefs and other traditional leaders referred to in Subsection (1) include matters relating to customary land, preservation of the environment, family matters, dispute resolution and the maintenance of peace and good order.
(3) The Autonomous Bougainville Government shall support and assist traditional chiefs and other traditional leaders in developing understanding of their roles, responsibilities and powers and the skills necessary for effective and responsible exercise of those roles, responsibilities and powers in the interest of their communities.
(4) The Autonomous Bougainville Government, in consultation with representatives of traditional chiefs and other traditional leaders, shall assist traditional chiefs and other traditional leaders in identifying their powers and obligations and by making laws in that regard to the extent that such matters need to be dealt with by law.
(5) In particular, the roles of traditional chiefs, other traditional leaders and traditional practices shall be recognized in relation to the following provisions of this Constitution: –
(a) Section 13 (strengthening of customary authority);
(b) Section 20 (welfare of widows, children, orphans, the aged and the disabled);
(c) Section 37 (cultural objectives);
(d) Section 43(1)(p) (factors to be considered by Autonomous Bougainville Government before requesting a transfer of a power or function);
(e) Section 44 (land matters);
(f) Section 45 (criminal law);
(g) Section 49(2), 49(4)(a) and (e) (other levels of formal government);
(h) Section 52 (Advisory Body);
(i) Section 115(2) (alternative dispute resolution);
(j) Section 121(1)(c) and (6) (Bougainville Judicial Appointments Committee);
(k) Section 126(2) (establishment of other courts);
(l) Section 136(a)(i) (juries and assessors);
(m) Section 148(2)(d) (Bougainville Police Service);
(n) Section 153(1)(e)(i) (general principles relating to finances and financial management);
(o) Section 165(4)(b) (the Bougainville Ombudsman);
(p) Section 170 (customary standards of leadership);
(q) Section 186 (customary methods of dealing with human rights abuses);
(r) Section 187(2) (issues arising from the Bougainville conflict);
(s) Section 198 (general approach to certain emergencies);
(t) Section 217(4)(b) and (5)(b)(ii) (requirements for amendment of Part XIV (Bougainville Government and Bougainville Referendum) of National Constitution, etc.,);
(u) Section 218(1)(a)(iii) (National Constitutional Regulations);
(v) Section 219(4)(b) (making of alterations to this Constitution)
(6) It is the duty of all levels of government in Bougainville and of all Bougainville governmental bodies and of officers of such levels of government and governmental bodies and of Bougainville Constitutional Office-holders to ensure, as far as is within their respective powers, compliance with this section.
52. ADVISORY BODY.
(2) The date referred to in Subsection (1) shall be a date after –
(a) the efforts by the Autonomous Bougainville Government to achieve fiscal self-reliance have progressed to the point where the establishment of an Advisory Body by the Autonomous Bougainville Government is sustainable; and
(b) arrangements for the organization of selection of representatives of traditional chiefs and other traditional leaders have been made that will facilitate the establishment of the Advisory Body.
(3) The principal functions of the Advisory Body shall be to advise the Bougainville Executive Council and the House of Representatives on –
(a) matters of importance referred to it by the House of Representatives or by the Bougainville Executive Council or considered by the Advisory Body on its own initiative; and
(b) matters concerning proposed or desirable change to this Constitution; and
(c) the roles of Bougainville custom and customary leadership.
(4) The Bougainville law referred to in Subsection (1) shall provide for the name, composition, manner of election or appointment, qualifications for and disqualifications from membership of and powers and other functions of the Advisory Body.
(5) A Bougainville law may make provision for matters relating to the Advisory Body other than those specified in Subsection (4).
(6) The Advisory Body shall not comprise part of the Bougainville legislature.
PART 5. – THE BOUGAINVILLE LEGISLATURE.
Division 1.
General.
53. BOUGAINVILLE LEGISLATURE.
54. EXERCISE OF LEGISLATURE.
(2) A Bougainville law may confer on an authority, other than the House of Representatives, legislative powers or functions.
(3) Nothing in this Constitution enables the House of Representatives to transfer permanently, or divest itself of, legislative power.
Division 2.
House of Representatives.
55. ESTABLISHMENT AND COMPOSITION OF THE HOUSE OF REPRESENTATIVES.
(2) The House of Representatives consists of –
(a) the President of the Autonomous Region of Bougainville; and
(b) other members being: –
(i) for the first general election of members of the House of Representatives, 33 directly elected members, and thereafter not more than 38 nor less than 28 members, each representing a single member constituency in accordance with Section 105 (constituencies); and
(ii) three women members, each representing a constituency for a separate Region (North, Central and South), elected to represent the interests of the women of the Region; and
(iii) subject to Subsection (5), three former combatant members, each representing a constituency for a separate Region (North, Central and South), qualified for nomination as such –
(A) in respect of the first election to the House of Representatives, in accordance with Section 58(1)(d) (mode of nomination) of Schedule 10 (electoral provisions relating to the first general election of President of the Autonomous Region of Bougainville and of members of the House of Representatives) to this Constitution; and
(B) for subsequent elections to the House of Representatives, in accordance with the Bougainville law referred to in Section 106(4) (Bougainville Electoral Commissioner and elections generally),
elected to represent the interests of former combatants in the Region; and
(iv) the Speaker in accordance with Section 60(4) (Speaker).
(3) Elected members of the National Parliament representing electorates in Bougainville are entitled to attend meetings of the House of Representatives and to take part in debate and proceedings in the same way as members of the House of Representatives but –
(a) may not introduce motions; and
(b) may not vote on any matter; and
(c) shall not be counted towards a quorum.
(4) No member of the House of Representatives shall represent two or more constituencies at the same time.
(5) Membership of the former combatants’ representatives of the House of Representatives under Subsection (2)(b)(iii) shall apply only until –
(a) the passing of a motion in accordance with Subsections (6) and (7); or
(b) the holding of the Bougainville Referendum in accordance with Division XIV.7 (Bougainville Referendum) of the National Constitution; or
(c) a decision in accordance with Part 17 (Bougainville Referendum) of this Constitution that the Bougainville Referendum shall not be held.
(6) The Autonomous Bougainville Government shall, before the end of the first term of the House of Representatives, in consultation with the former combatants’ Association, review the membership of former combatants’ representatives in the House of Representatives under Subsection (2)(b)(iii) and such membership shall not continue beyond that term where a motion, by the House of Representatives following such review, to the effect that such membership shall not continue beyond the end of that first term, has been passed by the House of Representatives by a two-thirds absolute majority vote.
(7) Where a motion has not been passed in accordance with Subsection (6), the Autonomous Bougainville Government shall, before the end of the second term of the House of Representatives (and before the end of any subsequent term of the House of Representatives during which former combatants’ representatives retain membership in the House of Representatives under Subsection (2)(b)(iii), in consultation with the former combatants’ Association, review the membership of former combatants in the House of Representatives under Subsection (2)(b)(iii) and such membership shall not continue beyond that term where a motion, by the House of Representatives following such review, to the effect that such membership shall not continue beyond the end of that term, has been passed by the House of Representatives by a two-thirds absolute majority vote.
(8) In Subsections (6) and (7), “former combatants’ Association” means the registered Association (by whatever name known) of former combatants of the Bougainville Revolutionary Army and of the Bougainville Resistance Force and of the Me’ekamui Defence Force, recognized by a Bougainville law as the official former combatants’ Association.
(9) A person who is, in accordance with Section 110 (right to vote) entitled to vote in an election of the President or of a member or members of the House of Representatives, is, subject to the provisions of the Bougainville law referred to in Section 106(4) (Bougainville Electoral Commissioner and elections generally) and Section 109 (form of elections) or of Schedule 10 (electoral provisions relating to the first general election of President of the Autonomous Region of Bougainville and of members of the House of Representatives) entitled to vote in an election for –
(a) the President; and
(b) a member referred to in Subsection (2)(b)(i); and
(c) a woman member referred to in Subsection (2)(b)(ii); and
(d) subject to Subsection (5), a former combatant member referred to in Subsection (2)(b)(iii).
56. QUALIFICATIONS FOR AND DISQUALIFICATIONS FROM ELECTION.
(2) A candidate for election to the House of Representatives must be qualified to vote in elections to the House of Representatives.
(3) A candidate for election to the House of Representatives as a member referred to in Section 55(2)(b)(i) (establishment and composition of the House of Representatives) must be a Bougainvillean and –
(a) be a member of a clan lineage that holds land in the constituency for which he wishes to nominate; or
(b) have resided continuously in that constituency for at least five years immediately prior to nomination; or
(c) have been born in that constituency.
(4) A candidate for election to the House of Representatives under Section 55(2)(b)(ii) (establishment and composition of the House of Representatives) must be a woman and be a Bougainvillean and –
(a) be a member of a clan lineage that holds land in the Region (North, Central or South) of Bougainville for which she intends to nominate; or
(b) have resided continuously in that Region for at least five years immediately prior to nomination.
(5) A candidate for election to the House of Representatives under Section 55(2)(b)(iii) (establishment and composition of the House of Representatives) must be a Bougainvillean and a former combatant (as that term is defined in Schedule 2 (meaning of certain expressions) to this Constitution and –
(a) be a member of a clan lineage that holds land in the Region (North, Central or South) of Bougainville for which he intends to nominate; or
(b) have resided continuously in that Region for at least five years immediately prior to nomination,
and have his nomination supported in accordance with Section 58(1)(d) (mode of nomination) of Schedule 10 (electoral provisions relating to the first general election of President of the Autonomous Bougainville Government and members of the House of Representatives) or with the Bougainville law referred to in Section 106 (Bougainville Electoral Commissioner and elections generally).
(6) A person is not qualified to be a candidate for election, or to continue to be a candidate for election, referred to in Subsection (3), (4) or (5) if he has nominated in an election to be held at the same time, as a candidate –
(a) referred to in any other of these Subsections; or
(b) for the office of President.
(7) A person is not qualified to be, or to remain a member of the House of Representatives if –
(a) he or she is not entitled to vote in elections to the House of Representatives; or
(b) he or she is of unsound mind within the meaning of any law relating to the person and property of persons of unsound mind; or
(c) subject to Subsections (8) to (11) (inclusive), he or she is under sentence of death or imprisonment for a period exceeding three months; or
(d) he or she has been declared bankrupt by a court of competent jurisdiction and remains bankrupt.
(8) Where a person is under sentence of death or imprisonment for a period exceeding three months, the operation of Subsection (7)(c) is suspended until –
(a) the end of any statutory period allowed for appeals against the conviction or sentence; or
(b) if an appeal is lodged within the period referred to in Paragraph (a), the appeal is determined.
(9) The references in Subsection (8) to appeals and to the statutory period allowed for appeals shall, where there is provision for a series of appeals, be read as references to each appeal and to the statutory period allowed for each appeal.
(10) If a free pardon is granted, a conviction is quashed or a sentence is changed to a sentence of imprisonment for three months or less, or some other form of penalty (other than death) is substituted, the disqualification ceases, and if at the time of the pardon, quashing, change of sentence or substitution of penalty –
(a) the writ for the by-election has been issued - the member is not restored as a member of the House of Representatives and the by-election proceeds according to law; or
(b) the writ for the by-election has not been issued-the member is restored as a member of the House of Representatives.
(11) In this section –
“appeal” includes any form of judicial appeal or judicial review;
“free pardon” means a free pardon granted under Section 151 (grant of pardon, etc.,) of the National Constitution;
“statutory period allowed for appeals” means a definite period allowed by law for appeals, whether or not it is capable of extension, but does not include an extension of such a definite period granted or that may be granted unless it was granted within that definite period.
(12) Nothing in this section is intended to reduce any right conferred by Section 50 (right to vote and stand for public office) of the National Constitution, but it is the considered opinion of the People of Bougainville, expressed through the Bougainville Constitutional Commission and the Bougainville Constituent Assembly, that any restrictions imposed by this section are reasonable and are reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.
57. NORMAL TERM OF OFFICE.
(2) The seat of a member of the House of Representatives becomes vacant –
(a) upon the expiry of the day fixed for the return of the writs for the general elections after he last became a member of the House of Representatives; or
(b) if he resigns his seat by notice in writing to the Speaker; or
(c) if he is absent, without leave of the House of Representatives, during the whole of three meetings of the House of Representatives, unless the House of Representatives decides to waive this rule upon satisfactory reasons being given; or
(d) if, except as authorized by this Constitution or a Bougainville law, he directly or indirectly agrees to take any payment in respect of his services in the House of Representatives; or
(e) if he becomes a member of or a candidate for election or appointment to, the National Parliament; or
(f) if he becomes a person who is disqualified under Section 56 (qualifications for and disqualifications from election) from election to the House of Representatives; or
(g) if he is dismissed from office under Part 13 (Leadership Code); or
(h) if he is recalled in accordance with Section 58 (recall of member of the House of Representatives); or
(i) on his death.
(3) For the purposes of Subsection (2)(c), a meeting of the House of Representatives –
(a) commences when the House of Representatives first meets following:–
(i) a general election; or
(ii) adjournment of the House of Representatives for a period exceeding 12 days; and
(b) ends when the House of Representatives –
(i) is adjourned for a period exceeding 12 days; or
(ii) adjourns for the last time before a Bougainville general election.
58. RECALL OF MEMBER OF THE HOUSE OF REPRESENTATIVES.
(2) Recall of a member shall be initiated by the presentation to the Bougainville Electoral Commissioner of a petition for recall signed by at least one third of the enrolled voters for the constituency which the member represents, stating the reasons for the recall of the member.
(3) A petition under Subsection (2) for recall of a member shall not be presented –
(a) within 15 months following the day fixed for the return of the writs in the election at which that member was last elected; or
(b) within one year preceding the fifth anniversary of the day referred to in Paragraph (a); or
(c) during the term of office of the House of Representatives during which a petition for recall of that member has already been presented.
(4) On receipt of a petition under Subsection (2), the Bougainville Electoral Commissioner shall ascertain that –
(a) the petition is not banned under Subsection (3); and
(b) it has been signed by at least one third of the enrolled voters for the constituency.
(5) Where the Bougainville Electoral Commissioner is satisfied that the petition –
(a) is not banned under Subsection (3); and
(b) has been signed by at least one third of the enrolled voters for the constituency,
he shall conduct simultaneously two polls in the constituency –
(c) one as to whether or not the member should be recalled; and
(d) one being a by-election for that constituency.
(6) The Bougainville Electoral Commissioner shall first determine the result of the poll under Subsection (5)(c) and –
(a) where more than one half of the enrolled voters in the constituency vote in favour of the recall of the member – determine that the member is recalled; or
(b) where not more than one half of the enrolled voters in the constituency vote in favour of the recall of the member – determine that the member is not recalled.
(7) Where –
(a) the member is determined under Subsection (6)(a) to have been recalled, the Bougainville Electoral Commissioner shall determine the result of the by-election under Subsection (5)(d) and shall declare the candidate who has received the largest number of votes as the member for the constituency; or
(8) The member whose recall is the subject of a poll under Subsection (5)(c) is not qualified to stand for election in the by-election under Subsection (5)(d).
(9) A Bougainville law may make provision for matters relating to the recall of a member of the House of Representatives.
Division 3.
The Speaker and the Deputy Speaker.
59. OFFICES OF SPEAKER AND DEPUTY SPEAKER.
60. SPEAKER.
(a) until a Bougainville law made by an absolute majority vote provides otherwise, has attained the age of 40 years; and
(b) is not a member of the House of Representatives; and
(c) is qualified to nominate for election to the House of Representatives.
(2) The Speaker shall be appointed by a vote of the House of Representatives in accordance with the Standing Orders from among persons nominated by the Regional Committees of the House of Representatives, established by Section 71(1)(b) (Committees).
(3) A Bougainville law or the Standing Orders may make provision relating to the nomination of a person for appointment as Speaker.
(4) Subject to any restrictions imposed by this Constitution, the Speaker is a member of the House of Representatives during his tenure of office as Speaker.
(5) Nothing in Subsection (1) is intended to reduce any right conferred by Section 50 (right to vote and stand for public office) of the National Constitution, but it is the considered opinion of the People of Bougainville expressed through the Bougainville Constitutional Commission and the Bougainville Constituent Assembly, that any restrictions imposed by this section are reasonable and are reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.
61. REMOVAL FROM OFFICE OF SPEAKER.
(a) if he ceases to be qualified as Speaker under Section 60(1) (Speaker); or
(b) if he resigns from the office of Speaker by notice in writing to the President; or
(c) upon the day fixed for the return of the writs for the general election after he was appointed Speaker; or
(d) if the House of Representatives votes, by a three quarters absolute majority vote, that he be removed from office; or
(e) if he is dismissed from office under Part 13 (Leadership Code); or
(f) if he is of unsound mind within the meaning of any law relating to the person and property of persons of unsound mind; or
(g) if he has been declared bankrupt by a court of competent jurisdiction and remains bankrupt; or
(h) on his death.
62. DEPUTY SPEAKER.
63. FUNCTIONS OF THE DEPUTY SPEAKER AND DEPUTY SPEAKER.
(a) upholding the dignity of; and
(b) maintaining order in; and
(c) regulating the proceedings and administering the affairs of; and
(d) controlling the precincts of,
the House of Representatives.
(2) The Speaker shall, in accordance with Section 68 (meetings of the House of Representatives), a Bougainville law or the Standing Orders, call meetings of the House of Representatives.
(3) In the event of a vacancy in the office of Speaker or his absence from the House of Representatives, and otherwise as determined by a Bougainville law or the Standing Orders, the Deputy Speaker has all the rights, privileges, powers, functions, duties and responsibilities of the Speaker.
(4) A Bougainville law or the Standing Orders may provide for other powers, functions, duties and responsibilities of the Speaker and the Deputy Speaker.
64. VOTING BY THE SPEAKER.
(a) to break a tie, where there is an equality of votes on any matter; or
(b) where one vote is needed to constitute a majority vote greater than a simple majority vote required by this Constitution, a Bougainville law or the Standing Orders.
Division 4.
General Law-making powers of the House of Representatives.
65. GENERAL LAW-MAKING POWERS.
(2) In particular, Bougainville laws, consistent with this Constitution, may provide for all matters that are necessary or convenient to be prescribed for carrying out and giving effect to this Constitution.
(3) Each law made by the House of Representatives shall receive such fair, large and liberal interpretation as will best ensure the attainment of the object of the law according to its true intent, meaning and spirit.
66. CERTIFICATION AS TO MAKING OF LAWS, ETC.,.
(2) The Speaker shall give notification of laws certified under Subsection (1) in the Bougainville Gazette.
(3) Subject to Subsection (4), a law made by the House of Representatives comes into operation on the date of the certificate under Subsection (1).
(4) Nothing in Subsection (3) prevents a law –
(a) being expressed to come, or to be deemed to have come, into operation at a time specified by, or fixed in accordance with, a Bougainville law; or
(b) being retrospective or retroactive.
(5) The Speaker may certify such other matters relating to the procedures of the House of Representatives or its committees as are required by this Constitution.
67. RIGHT TO INTRODUCE NEW LAWS.
(2) The petition, question, bill, resolution, motion or matter shall be dealt with as provided by the Standing Orders.
(3) The Standing Orders may make provision for priority to be given to Bougainville Executive Council business at certain times or in certain circumstances.
Division 5.
Procedures, Privileges, etc., of the House of Representatives.
68. MEETINGS OF THE HOUSE OF REPRESENTATIVES.
(2) The House of Representatives shall meet at least once in every period of three months.
(3) Subject to Subsection (2) of this section, Section 5 (Autonomous Region of Bougainville capital), Section 63 (functions of the Speaker and Deputy Speaker), and the requirements of Part 19 (emergency procedures and powers) the time, place and date of meetings of the House of Representatives will be fixed by the House of Representatives on the motion of a Minister.
(4) A Bougainville law may make further provision in respect of the calling of meetings of the House of Representatives and may provide for meetings to be called on the request of members.
69. QUORUM AT MEETINGS.
(2) The Standing Orders shall make provision for the action to be taken in the event of a lack or a loss of quorum at any time.
70. VOTING IN THE HOUSE OF REPRESENTATIVES.
71. COMMITTEES.
(a) a Public Accounts Committee established by Section 160 (establishment of Public Accounts Committee); and
(b) a Regional Committee for each of the following Regions of Bougainville: –
(i) North;
(ii) Central;
(iii) South,
consisting of the elected members of the House of Representatives within the Region (or in the case of women members and former combatant members, for the Region); and
(c) such other committees as are determined by the House of Representatives from time to time.
(2) Subject to this Constitution, the House of Representatives shall make provision by a Bougainville law or the Standing Orders or otherwise, for the establishment, membership, jurisdiction, functions, powers and procedures of committees established under Subsection (1) and in particular for empowering such a committee to call for persons, papers and records.
(3) No member of the Bougainville Executive Council may be a member of a committee other than a Regional Committee under Subsection (1)(b).
(4) In principle, membership of committees under Subsection (1)(a) and (c) should be spread as widely as possible among members of the House of Representatives from the various Regions, other than members of the Bougainville Executive Council.
(5) For the purposes of Subsection (1)(b), a Bougainville law made by an absolute majority vote –
(a) shall, subject to Section 105(3) (constituencies), give details of the composition of the Regions; and
(b) shall make provision for altering the Regions or the number of Regions or the composition of the Regions and for such other matters relating to the Regions as may be necessary; and
(c) may provide for additional powers to be given to the Regional Committees.
72. STANDING ORDERS OF THE HOUSE OF REPRESENTATIVES.
73. PRIVILEGES, ETC., OF THE HOUSE OF REPRESENTATIVES.
(2) There shall be freedom of speech, debate and proceedings in the House of Representatives, and the exercise of those freedoms shall not be questioned in any court or in any proceedings whatever (otherwise than in proceedings in the House of Representatives).
(3) No member of the House of Representatives is subject to the jurisdiction of any court in respect of the exercise of his powers or the performance of his functions, duties or responsibilities as such, but this subsection does not affect the operation of Part 13 (Leadership Code).
(4) No member of the House of Representatives is liable to civil or criminal proceedings, arrest, imprisonment, fine, damages or compensation by reason of any matter or thing that he has brought by petition, question, bill, resolution, motion or otherwise, or has said before or submitted to the House of Representatives or a committee of the House of Representatives.
(5) No member of the House of Representatives or other person is liable to civil or criminal proceedings, arrest, imprisonment, fine, damages or compensation by reason of –
(a) an act done under the authority of the House of Representatives or under an order of the House of Representatives or of a committee of the House of Representatives; or
(b) words spoken or used, or a document or writing made or produced, under an order or summons made or issued under the authority of the House of Representatives or of a committee of the House of Representatives.
(6) The members of the House of Representatives are free from arrest for civil debt during meetings of the House of Representatives and during the period commencing two days before and ending two days after a meeting when they are travelling from their respective constituencies (or in the case of the Speaker the constituency in which he normally resides) to attend the meeting or are returning there from the meeting.
(7) No process issued by any court in the exercise of its civil jurisdiction shall be served or exercised through the Speaker or an officer of the House of Representatives, or within the precincts of the House of Representatives (as defined by or under a Bougainville law) while it is in session.
(8) The powers conferred by Section 65 (general law-making powers) extend to the making of laws –
(a) declaring further powers (other than legislative powers), privileges and immunities of the House of Representatives, and of its members and committees; and
(b) providing for the manner in which powers, privileges and immunities provided for by or under this section may be exercised or upheld.
(9) The powers and privileges conferred by or under this section do not and shall not include the power to impose or provide for the imposition of a fine, imprisonment, forfeiture of property or other penalty of a criminal nature, but this subsection does not prevent the creation of offences for the purpose of this section that are triable within the Bougainville Courts.
(10) For the purposes of this section, “member of the House of Representatives” includes the Speaker.
74. INTERNATIONAL AGREEMENTS.
(a) requests the agreement of the Autonomous Bougainville Government to the entering by the Independent State of Papua New Guinea into a proposed international border agreement which affects the jurisdiction of the Autonomous Bougainville Government; or
(b) is required to obtain the agreement of the Autonomous Bougainville Government to the entering by the Independent State of Papua New Guinea into a proposed treaty which has a purpose of altering the autonomy arrangements of the Autonomous Bougainville Government or which affects the jurisdiction of the Autonomous Bougainville Government.
(2) The President shall, within five sitting days of the House of Representatives after receipt by the Autonomous Bougainville Government of a request referred to in Subsection (1)(a) or for agreement referred to in Subsection (1)(b) –
(a) table particulars of the proposed international border agreement or treaty in the House of Representatives; and
(b) move a motion in the House of Representatives that the agreement of the Autonomous Bougainville Government to the entering by the State into the international border agreement or treaty be given to the National Government.
(3) The agreement to the entering by the State into the international border agreement or treaty shall only be given by the Autonomous Bougainville Government to the National Government where the relevant motion under Subsection (2)(b) has been passed by the House of Representatives by an absolute majority vote.
75. PROCEEDINGS NON-JUSTIFIABLE.
76. QUESTIONS AS TO MEMBERSHIP.
(a) the qualification of a person to be or to remain a member of the House of Representatives; or
(b) the validity of an election to the House of Representatives.
(2) Until the establishment of the Bougainville High Court, the National Court has jurisdiction to determine any question as to –
(a) the qualification of a person to be or to remain a member of the House of Representatives; or
(b) the validity of an election to the House of Representatives.
77. VALIDATION OF ACTS OF THE HOUSE OF REPRESENTATIVES.
(a) was not duly qualified to be elected or appointed, or to continue, as a member of the House of Representatives; or
(b) had vacated his office as a member of the House of Representatives,
all things done or purported to have been done by the House of Representatives or by the committee, as the case may be, shall be deemed to have been as validly done as if that person had, when so sitting or voting, been duly qualified to be elected or appointed, or to continue as a member of the House of Representatives or had not vacated his office, as the case may be.
78. CLERKS AND OFFICERS OF THE HOUSE OF REPRESENTATIVES.
(2) The Autonomous Bougainville Government shall make available officers and employees of the Bougainville Public Service to assist the Speaker in the administration of the House of Representatives.
PART 6. – THE BOUGAINVILLE EXECUTIVE.
Division 1.
The Executive Power.
79. EXERCISE OF THE EXECUTIVE POWER.
(2) Subject to this Constitution and to a Bougainville law, the Bougainville Executive Council has, in addition to the other powers conferred on it, power to do all things that are necessary or convenient to be done for or in connection with the operations and activities of the Autonomous Bougainville Government.
(3) Notwithstanding Subsections (1) and (2), a Bougainville law may confer on an authority other than the Bougainville Executive Council executive powers or functions.
Division 2.
Bougainville Executive Council.
80. MEMBERSHIP OF THE BOUGAINVILLE EXECUTIVE COUNCIL.
(a) the President; and
(b) the Vice-President; and
(c) subject to Section 101 (dismissal of members of the Bougainville Executive Council), a woman member of the House of Representatives appointed by the President, being the woman member nominated by the women members (both those elected to represent the interests of women and any women members for single member constituencies); and
(d) six members appointed in accordance with Section 81 (representation of regions); and
(e) one member appointed by the President; and
(f) four members appointed by the President under Section 83 (appointment of other members).
(2) All members of the Bougainville Executive Council must be members of the House of Representatives.
81. REPRESENTATIVES OF REGIONS.
(2) Each Committee established under Section 71(1)(b) (Committees) for the purposes of this section shall recommend to the President the names of five members of the House of Representatives representing constituencies in the Region for which the Committee is established for appointment by the President of two of the members named as members of the Bougainville Executive Council.
(3) On receipt of a recommendation under Subsection (2), the President shall, within five sitting days of the House of Representatives, and in any event, no more that 14 days after the day fixed for the return of the writs for a general election, appoint to the Bougainville Executive Council two of the members so recommended, and notify the Speaker in accordance with Section 84 (assumption of office by members of the Bougainville Executive Council).
(4) If the office of a member of the Bougainville Executive Council appointed under this section becomes vacant under Section 100 (vacation of office of members of the Bougainville Executive Council), the preceding provisions of this section apply in respect of the filling of the vacancy.
(5) If a member of the Bougainville Executive Council appointed under this section is suspended from office under Part 13 (Leadership Code), or otherwise –
(a) the President may appoint a member of the House of Representatives to act in the office of the suspended member pending a recommendation of the relevant Committee referred to in Subsection (2); and
(b) when the President receives a recommendation referred to in Paragraph (a) for the temporary filling of the office, Subsection (3), with the necessary modifications, applies.
(6) A member of the Bougainville Executive Council appointed under Subsection (5) ceases to hold office when the suspension is lifted or the original member is dismissed.
82. CARETAKER BOUGAINVILLE EXECUTIVE COUNCIL.
(a) the President; and
(b) the Vice President; and
(c) a woman member of the House of Representatives (whether elected as a representative of the interests of women or being the member for a single member constituency) selected by the President,
but in any case a caretaker Bougainville Executive Council shall not hold office for more than 14 days after the day fixed for the return of the writs for a general election.
83. APPOINTMENT OF OTHER MEMBERS.
(2) The members referred to in Subsection (1) shall not be appointed until such time as the House of Representatives considers that the financial resources of the Autonomous Bougainville Government permit the appointment and a Bougainville law makes provision for the appointment.
84. ASSUMPTION OF OFFICE BY MEMBERS OF THE BOUGAINVILLE EXECUTIVE COUNCIL.
85. RESPONSIBILITIES.
(2) In the performance of its functions, the Bougainville Executive Council –
(a) is collectively responsible to the House of Representatives, and through the House of Representatives to the People of the Autonomous Region of Bougainville, for the carrying out of executive functions of the Autonomous Bougainville Government in accordance with Subsection (1), and for all things done by or under the authority of the Bougainville Executive Council; and
(b) must comply with the Leadership Code.
(3) A decision of the Bougainville Executive Council is non-justiciable on the grounds that it does not comply with Subsection (2)(b).
(4) Members of the Bougainville Executive Council (other than the President and the Vice-President) shall –
(a) be called Ministers; and
(b) have such titles, portfolios and responsibilities as are determined by the President.
86. PROCEDURES.
(2) Subject to any Bougainville law, a question whether procedures prescribed or determined for the Bougainville Executive Council have been complied with, is non-justiciable.
87. DELEGATION BY THE BOUGAINVILLE EXECUTIVE COUNCIL, ETC.
(a) by the Bougainville Executive Council – to a member of the Council; or
(b) by a member of the Bougainville Executive Council – to a public officer or member of a Bougainville Government Service,
of all or any of its or his powers, functions, duties and responsibilities –
(c) including, if the Bougainville law so provides, the powers of delegation; and
(d) not including any legislative power or any power in or in relation to the House of Representatives.
Division 3.
The President.
88. OFFICE OF PRESIDENT.
89. EELCTION OF PRESIDENT.
(2) A person shall not be elected as President on more than two occasions.
(3) Except as provided by Section 90 (special election of President), the election of a President shall be held as part of, and at the same time as, a Bougainville general election under Section 107 (Bougainville general elections) and for that purpose –
(a) the provisions of this Constitution relating to Bougainville general elections, with the necessary modifications, apply; and
(b) the whole of the Autonomous Region of Bougainville is a single constituency.
90. SPECIAL ELECTION OF PRESIDENT.
(a) other than in circumstances described in Paragraph (b) of this section – an election shall be held to fill the office of President; or
(b) after the fourth anniversary of the day fixed for the return of the writs in the previous general election – the Vice-President shall, subject to Section 107(1)(b)(iii) (Bougainville general elections) assume the office of President and shall, from among the members of the House of Representatives, from one of the Regions (North, Central and South) other than the Region from which he himself comes, appoint a new Vice-President.
(2) The provisions of this Constitution relating to the election of a President under Section 89 (election of President), with the necessary modifications, apply to and in relation to an election under Subsection (1)(a).
91. QUALIFICATIONS FOR AND DISQUALIFIFCATIONS FROM ELECTION AS PRESIDENT.
(2) A candidate for election as President must be qualified to vote in elections to the House of Representatives.
(3) A candidate for election as President must be a Bougainvillean.
(4) A person is not qualified to stand, or to continue to stand for election as President if –
(a) he is not qualified or becomes disqualified, in accordance with Section 110 (right to vote) to vote in an election to the House of Representatives; or
(b) he is of unsound mind within the meaning of any law relating to the person and property of persons of unsound mind; or
(c) he is under, or becomes subject to, a sentence of death or imprisonment for a period of more than three months; or
(d) he is, or becomes disqualified from standing for election under this Constitution; or
(e) he is, or becomes, a member of, or a candidate for election or appointment to, the National Parliament, or to the House of Representatives; or
(f) he has already been elected as President on two occasions; or
(g) he has been declared bankrupt by a court of competent jurisdiction, and remains bankrupt; or
(h) he has nominated in an election to be held at the same time as a candidate for election as –
(i) a member representing a single member constituency under Section 55(2)(b)(i) (establishment and composition of the House of Representatives); or
(ii) a woman member to represent the interests of women under Section 55(2)(b)(ii) (establishment and composition of the House of Representatives); or
(iii) a former combatant member to represent the interests of former combatant members under Section 55(2)(b)(iii) (establishment and composition of the House of Representatives); or
(i) if the election is an election for President under Section 58(5)(d) (recall of member of the House of Representatives) and the person is the person whose recall is the subject of the poll under Section 58(5)(c) (recall of member of the House of Representatives).
(5) Nothing in Subsection (1) is intended to reduce any right conferred by Section 50 (right to vote and stand for public office) of the National Constitution, but it is the considered opinion of the People of Bougainville expressed through the Bougainville Constitutional Commission and the Bougainville Constituent Assembly, that any restrictions imposed by this section are reasonable and are reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.
92. ASSUMPTION OF OFFICE.
93. FUNCTIONS OF THE PRESIDENT.
(a) is the Head and Chairman of the Bougainville Executive Council; and
(b) shall preside at all meetings of the Bougainville Executive Council at which he is present; and
(c) shall represent the Autonomous Bougainville Government and the People of the Autonomous Region of Bougainville on ceremonial occasions,
and has such other rights, powers, functions, duties and responsibilities as are provided for in this Constitution or in a Bougainville law, or by law.
94. VACATION OF OFFICE OF PRESIDENT.
(2) The office of President becomes vacant if the President –
(a) dies; or
(b) resigns by written notice to the Speaker; or
(c) ceases in accordance with Section 91(2) (qualifications for and disqualifications from election as President) to be qualified to stand for election as President; or
(d) is dismissed from office as President under the provisions of Part 13 (Leadership Code); or
(e) is recalled in accordance with Section 58 (recall of members of the House of Representatives); or
(f) is or becomes of unsound mind within the meaning of any law relating to the person and property of persons of unsound mind; or
(g) has been declared bankrupt by a court of competent jurisdiction and remains bankrupt.
Division 4.
Vice President.
95. OFFICE OF VICE-PRESIDENT.
96. APPOINTMENT OF VICE PRESIDENT.
(2) The President may dismiss the Vice-President from office at any time and on dismissal the person dismissed ceases to be a member of the Bougainville Executive Council.
97. ASSUMPTION OF OFFICE.
98. FUNCTIONS OF THE VICE-PRESIDENT.
(a) during any vacancy in the office of President; and
(b) during any absence or inability to act of the President; and
(c) in the circumstances referred to in Section 90(1)(b) (special election of President) when he shall assume the office of President,
and accordingly any reference in this Constitution (other than references to the election of the President), or any Bougainville law, or the Standing Orders, to the President shall be read as including a reference to the Vice-President acting under this subsection.
(2) A question, whether the occasion for the exercise or performance of a right, privilege, power, function, duty or responsibility by the Vice-President under Subsection (1) has arisen or has ceased, is non-justiciable.
Division 5.
Members of the Bougainville Executive Council Generally.
99. INTERPRETATION OF DIVISION 5.
100. VACATION OF OFFICE OF MEMBERS OF THE BOUGAINVILLE EXECUTIVE COUNCIL.
(a) on the assumption of office by the President following an election to office of a new President under Section 89 (election of President) or Section 90(1)(a) (special election of President); or
(b) if, other than following a general election of members (when Paragraph (a) applies) he ceases to be a member of the House of Representatives; or
(c) if he resigns by written notice to the President; or
(d) if he is dismissed from office under Section 101 (dismissal of members of the Bougainville Executive Council); or
(e) if he is dismissed from office under Part 13 (Leadership Code); or
(f) if he is recalled under Section 58 (recall of member of the House of Representatives); or
(g) on his death.
(2) On receipt of a notice of resignation under Subsection (1)(c) the President shall give written notice of the resignation to –
(a) the Speaker; and
(b) the other members of the Bougainville Executive Council.
101. DISMISSAL OF MEMBERS OF THE BOUGAINVILLE EXECUTIVE COUNCIL.
(2) Where the President dismisses a member of the Bougainville Executive Council under Subsection (1), the President shall, as soon as is practicable, notify in writing –
(a) the member of the Bougainville Executive Council concerned; and
(b) the Speaker; and
(c) the other members of the Bougainville Executive Council; and
(d) where the member is a member referred to in Section 80(1)(d) (membership of the Bougainville Executive Council), the Regional Committee and request that the Regional Committee recommends to him the names of five members of the House of Representatives, representing constituencies in the Region for which the Committee is established, for appointment by the President of one of the members named as a member of the Bougainville Executive Council to replace the member dismissed.
(3) The dismissal of a member of the Bougainville Executive Council under this section takes effect immediately or at such other time as is fixed by the President for the purpose.
(4) Where the member of the Bougainville Executive Council referred to in Section 80(1)(c) (membership of Bougainville Executive Council) is dismissed under Subsection (1), the President shall appoint to the Bougainville Executive Council, one of the other women members of the House of Representatives being another women member nominated by the women members (both those elected to represent the interests of women and any women members for single member constituencies).
PART 7. – BOUGAINVILLE SENIOR APPOINTMENTS COMMITTEE AND APPOINTMENTS GENERALLY.
102. BOUGAINVILLE SENIOR APPOINTMENTS COMMITTEE.
(a) the President; and
(b) the Speaker; and
(c) a person appointed to represent the Churches in Bougainville; and
(d) a person appointed to represent the women of Bougainville; and
(e) a practising lawyer who is a Bougainvillean appointed by the Papua New Guinea Law Society or any Bougainville equivalent; and
(f) in respect of the appointment, suspension or removal from office of each Bougainville Constitutional Office-holder, in accordance with Section 312(3)(a) (Bougainville Constitutional Office-holders) of the National Constitution, two persons appointed by the body responsible for the appointment of the equivalent Constitutional Office-holder under Section 221 (definitions) of the National Constitution, or where there is no such equivalent, by the National Executive Council.
(2) A Bougainville law shall make provision for the method of selection and appointment of the persons referred to in Subsection (1)(c) and (d), and for the method of recognition of any Bougainville equivalent to the Papua New Guinea Law Society referred to in Subsection (1)(e).
(3) The Bougainville Senior Appointments Committee shall be responsible for the appointment, suspension or removal from office of –
(a) Bougainville Constitutional Office-holders specified in Section 189 (Bougainville Constitutional Office-holders) (other than the Chief Justice of Bougainville and other Bougainville Judges, the Bougainville Public Prosecutor, the Bougainville Public Solicitor and the Head of other Bougainville Courts for whom specific provision is made by Section 121 (Bougainville Judicial Appointments Committee)); and
(b) the holders of other senior offices,
in accordance with this Constitution and Bougainville laws.
(4) The Bougainville Senior Appointments Committee is not subject to direction or control by any person or authority and shall exercise its powers and functions in a non-partisan manner.
103. PART TIME APPOINTMENTS.
(2) A person may hold simultaneously more than one office determined under Subsection (1) to be an office which can be held on a part-time basis, but only where the performance of his duties in the offices does not place him in a conflict of interest situation.
PART 8. – CONSTITUENCIES AND ELECTIONS.
104. BOUGAINVILLE BOUNDARIES COMMISSIONER.
(a) the number of single member constituencies for the House of Representatives, being not more than 38 nor less than 28; and
(b) the boundaries of the constituencies of the members of the House of Representatives representing single member constituencies in accordance with Section 105 (constituencies); and
(c) the boundaries of the Regional constituencies of members of the House of Representatives representing the interests of women and of former combatants in accordance with Section 105 (constituencies).
(2) The Bougainville Boundaries Commissioner is not subject to direction or control by any person or authority in the exercise of his powers and functions under this Constitution.
(3) A Bougainville law made by an absolute majority vote shall make further provisions for and in respect of the appointment and procedures of the Bougainville Boundaries Commissioner.
105. CONSTITUENCIES.
(a) Buka – six constituencies;
(b) Torokina – one constituency;
(c) Kieta – six constituencies;
(d) Nissan/Atolls – two constituencies;
(e) Kunua/Keriaka – two constituencies;
(f) Tinputz – two constituencies;
(g) Selau/Suir – two constituencies;
(h) Buin – four constituencies;
(i) Siwai – three constituencies;
(j) Bana – three constituencies;
(k) Wakunai – two constituencies.
(2) The boundaries of each constituency referred to in Subsection (1) shall –
(a) be within a district; and
(b) as far as is practicable, be within the boundaries of one open electorate referred to in Subsection (3); and
(c) for the first Bougainville general election be as determined under Section 233 (First Bougainville General Election Boundaries Director); and
(d) thereafter, where applicable, be as determined under this section.
(3) The boundaries for the constituencies for the three Regions (North, Central and South) referred to in Section 55(2)(b)(ii) and (iii) (establishment and composition of the House of Representatives) shall, for the first Bougainville general election, and thereafter until altered by a determination under this section, be the boundaries of the open electorates for the 2002 general elections to the National Parliament.
(4) In recommending constituency boundaries under Subsection (3) for elections other than the first Bougainville General Election, the Bougainville Boundaries Commissioner shall take into account matters broadly consistent with the matters referred to in Subsection (5)(a), (b), (c), (d), (e), (g), (h) and (i), the principle of regional representation and other electoral and administrative boundaries.
(5) In recommending constituencies and constituency boundaries under Section 104(1)(b) (Bougainville Boundaries Commissioner), the Bougainville Boundaries Commissioner shall take into account –
(a) population; and
(b) language groupings; and
(c) cultural similarity and diversity; and
(d) physical features and geographical characteristics; and
(e) geographic organization of trade and communications; and
(f) the Regions referred to in Section 55(2)(b)(ii) and (iii) (establishment and composition of the House of Representatives) in relation to the election of three women members and three former combatant members of the House of Representatives; and
(g) identifiable minority groups with special interests; and
(h) the financial resources of the Autonomous Bougainville Government; and
(i) any other considerations laid down by a Bougainville law made by an absolute majority vote.
(6) In respect of elections to the House of Representatives after the first general election, the Bougainville Boundaries Commissioner may –
(a) continue with the allocation of constituencies and constituency boundaries within districts for the first general election; or
(b) change to population based boundaries, based on a quota, with a tolerance of 20% over or under the quota except that the population can be up to 30% under the quota in cases of areas with a special need.
(7) The number of constituencies and their boundaries shall be determined by the House of Representatives as provided by this section.
(8) The House of Representatives may accept or reject, but may not amend, any recommendation from the Bougainville Boundaries Commissioner under Section 104(1) (Bougainville Boundaries Commissioner), but may not reject a set of recommendations which, following previous rejection, has been modified by the Bougainville Boundaries Commissioner.
(9) A Bougainville law made by an absolute majority vote shall make further provision for and in respect of –
(a) the procedures for formulating the recommendations of the Bougainville Boundaries Commissioner; and
(b) the procedures to be followed by the House of Representatives when considering the recommendations of the Bougainville Boundaries Commissioner; and
(c) the procedures to be followed by the Bougainville Boundaries Commissioner and the House of Representatives where recommendations by the Bougainville Boundaries Commissioner are rejected.
106. BOUGAINVILLE ELECTORAL COMMISSIONER AND ELECTIONS GENERALLY.
(2) The Bougainville Electoral Commissioner shall be responsible, in accordance with a Bougainville law made by an absolute majority vote, for the conduct of elections to the House of Representatives.
(3) In the performance of his functions, duties and responsibilities under this Constitution, the Bougainville Electoral Commissioner is not subject to direction or control by any person or authority.
(4) A Bougainville law made by an absolute majority vote shall make provision for and in respect of –
(a) the procedures to be followed by the Bougainville Electoral Commissioner and for safeguarding his independence; and
(b) the electoral system; and
(c) safeguarding the integrity of elections; and
(d) appeals to the Bougainville High Court on election matters.
107. BOUGAINVILLE GENERAL ELECTIONS.
(a) in the first instance, in accordance with the provisions of Section 236 (first Bougainville general election); and
(b) thereafter, subject to Subsection (4) –
(i) within a period of three months before the fifth anniversary of the day fixed for the return of the writs for the previous general election; or
(ii) if, after the fourth anniversary of the day fixed for the return of the writs in the previous general election, the office of President becomes vacant under Section 94(2) (vacation of office of President); or
(iii) if the House of Representatives, by a three-quarters absolute majority vote, so decides.
(2) Subject to Subsection (4), the Speaker, acting with, and in accordance with the advice of the Bougainville Electoral Commissioner, shall fix the first and the last days of the period during which polling shall take place at a Bougainville general election and the day by which the writs for the election shall be returned.
(3) Subject to Subsection (4), in advising the Speaker under Subsection (2) and in conducting the election, the Bougainville Electoral Commissioner shall endeavour to ensure –
(a) in a case to which Subsection (1)(b)(i) applies – the day for the return of the writs is fixed as nearly as may reasonably be to the fifth anniversary of the day fixed for the return of the writs in the previous Bougainville general election; and
(b) in a case to which Subsection (1)(b)(ii) applies – the day fixed for the return of the writs is as soon as may reasonably be after the office of President becomes vacant; and
(c) in a case to which Subsection (1)(b)(iii) applies – the day fixed for the return of the writs is as soon as may reasonably be after the date of the decision of the House of Representatives.
(4) A Bougainville general election shall not be arranged to be held during the holding of a general election to the National Parliament (being the period commencing on the day of issue of writs for a general election to the National Parliament and ending on the day fixed for the return of the writs in such election) and where, in accordance with Subsection (1)(b) a Bougainville general election falls to be held during that period it shall be deferred until after the completion of that period and the Bougainville Electoral Commissioner shall advise the Speaker accordingly.
(5) General elections to other levels of formal government under Section 49 (other levels of formal government) including Regional Government under Section 50 (Regional Government) shall be held at the same time as a Bougainville general election.
108. BY-ELECTIONS.
(a) within the period of 12 months before the fifth anniversary of the date fixed for the return of the writs for the previous general election; or
(b) after the writ has been issued for an election under Section 107(1)(b)(ii) and (iii) (Bougainville general elections).
(2) Where the seat of a member becomes vacant in the circumstances referred to in Subsection (1)(a) or (b), it shall remain vacant until the next general election.
109. FORM OF ELECTIONS.
(a) in the case of the first election of the President or of a member or members of the House of Representatives – by a non-preferential single vote system; and
(b) in the case of subsequent elections of the President and of members of the House of Representatives – by a preferential voting system,
under universal adult suffrage as provided for by this Constitution or by a Bougainville law made by an absolute majority vote.
110. RIGHT TO VOTE.
(a) is at least 18 years of age; and
(b) is a Bougainvillean; and
(c) is a citizen; and
(d) is not of unsound mind within the meaning of any law relating to the protection of the person and property of persons of unsound mind,
is entitled to vote in an election of the President or of a member or members of the House of Representatives, subject to the provisions of Schedule 10 (electoral provisions relating to the first general election of President of the Autonomous Region of Bougainville and of members of the House of Representatives) or of the Bougainville law referred to in Section 106 (Bougainville Electoral Commissioner and elections generally) or of Section 109 (form of elections).
(2) A person referred to in Subsection (1) is entitled to vote in an election for –
(a) President; and
(b) a member referred to in Section 55(2)(b)(i) (establishment and composition of the House of Representatives); and
(c) a woman member referred to in Section 55(2)(b)(ii) (establishment and composition of the House of Representatives); and
(d) subject to Section 55(5) (establishment and composition of the House of Representatives), a former combatant member referred to in Section 55(2)(b)(iii) (establishment and composition of the House of Representatives).
(3) Nothing in Subsection (1) is intended to reduce any right conferred by Section 50 (right to vote and stand for public office) of the National Constitution, but it is the considered opinion of the People of Bougainville, expressed through the Bougainville Constitutional Commission and the Bougainville Constituent Assembly, that any restrictions imposed by Subsection (1) are reasonable and are reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.
111. POLITICAL PARTIES.
(a) make provision for a system of registration of political parties in Bougainville; and
(b) provide that to qualify for registration a political party must –
(i) provide evidence that it has such number of members in all Regions of Bougainville as is required by that Bougainville law; and
(ii) provide evidence that it has policies on broad subject matters relevant to Bougainville; and
(iii) have organizational structures that meet basic standards of democracy; and
(iv) disclose the sources of its funding to the Registrar who shall furnish them to the Bougainville Ombudsman; and
(c) make provision for all other matters relating to the system of registration (including provision for deregistration in certain circumstances) of political parties.
(2) A political party cannot take part in an election of the President or of a member or members of the House of Representatives or to any other level of formal government under this Constitution unless the political party is registered in accordance with the Bougainville law referred to in Subsection (1).
(3) For the purposes of Subsections (2) and (5), “take part in an election” means, without limiting the generality of the expression –
(a) advertise or proclaim in any way that a candidate for election at an election –
(i) supports its policies; or
(ii) is nominated or supported or funded by it; or
(b) take any action likely to indicate to voters that it supports any candidate.
(4) A candidate for election to the House of Representatives or as President or to any other level of formal government under this Constitution shall not –
(a) accept funds from any political party; or
(b) hold himself out as supporting or supported by a political party; or
(c) hold himself out as a candidate supported by a political party,
unless the political party is registered in accordance with the Bougainville law referred to in Subsection (1).
(5) For the purposes of this section, “political party” means any party or organization having political aims and desiring to take part in an election.
(6) Nothing in this section is intended to reduce any right conferred by Section 50 (right to vote and stand for public office) of the National Constitution, but it is the considered opinion of the People of Bougainville, expressed through the Bougainville Constitutional Commission and the Bougainville Constituent Assembly, that any restrictions imposed by this section are reasonable and are reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.
PART 9. – ADMINISTRATION OF JUSTICE.
Division 1.
General.
112. BOUGAINVILLE COURTS.
(a) the Bougainville High Court established under Section 116 (establishment of the Bougainville High Court) which has the powers and functions specified in Section 119 (jurisdiction of the Bougainville High Court); and
(b) Bougainville courts (other than the Bougainville High Court and a court with a jurisdiction similar to that of a National Village Court) established under Section 126 (establishment of other courts) which have the powers specified in Bougainville laws; and
(c) the Supreme Court established under the National Constitution, which is the final court of appeal for the Autonomous Region of Bougainville, including appeals in relation to determinations made by the Bougainville High Court under Section 119 (jurisdiction of the Bougainville High Court); and
(d) the National Court established under the National Constitution, which has the power –
(i) to review the exercise of judicial authority by a Bougainville court (other than the Bougainville High Court) and by tribunals established under Section 132 (constitution of tribunals); and
(ii) equal to the power of the Bougainville High Court, to hear appeals from Bougainville Courts, but such power shall be exercised only as an alternative appeal and not as an appeal additional to that to the Bougainville High Court under Section 119 (jurisdiction of the Bougainville High Court); and
(e) such other courts established under Section 172 (establishment of other courts) of the National Constitution (to the extent that they are not replaced by courts of similar jurisdiction established under Section 126 (establishment of other courts) which have the powers specified in the National laws establishing them).
(2) Subject to any right of appeal or power of review of a decision, it is the duty of all persons (including the Law Officers of the Autonomous Region of Bougainville and other officers of the Bougainville Government Services) and of all bodies and institutions, to comply with, and so far as is within their respective lawful powers, to put into effect, insofar as relating to the Autonomous Region of Bougainville, all decisions of the Bougainville Courts.
(3) Except to the extent that this Constitution specifically provides otherwise, no person or authority, other than –
(a) the House of Representatives through legislation in respect of the Bougainville High Court and other Bougainville courts; and
(b) as provided in the National Constitution, the National Parliament through legislation in respect of the Supreme Court, the National Court and other courts of the National Judicial System, (including in respect of National laws applying in Bougainville the Bougainville High Court and other Bougainville Courts),
has power to give directions to any court, or to a member of any court of the Bougainville Courts or to a member of any such Courts in respect of the exercise of judicial powers and functions.
(4) The Bougainville High Court and other Bougainville Courts are part of the National Judicial System.
113. THE LAW OFFICERS OF BOUGAINVILLE.
(a) the principal legal adviser to the Bougainville Executive Council;
(b) the Bougainville Public Prosecutor under Section 128 (Bougainville Public Prosecutor and Bougainville Public Solicitor);
(c) the Bougainville Public Solicitor under Section 128 (Bougainville Public Prosecutor and Bougainville Public Solicitor).
(2) A Bougainville law shall make provision for and in respect of the office referred to in Subsection (1)(a).
114. EXERCISE OF THE JUDICIAL POWER.
115. ALTERNATIVE DISPUTE RESOLUTION.
(a) the establishment of arbitral or reconciliation tribunals, by law or by consent of the parties, whether ad hoc or otherwise, outside the Bougainville Courts; and
(b) methods of dispute resolution outside the Bougainville Courts.
(2) A Bougainville law referred to in Subsection (1) shall utilize and encourage the utilization of –
(a) customary dispute resolution and reconciliation practices; and
(b) the role of traditional chiefs and other traditional leaders in such dispute resolution and reconciliation practices.
(3) No person or body outside the Bougainville Courts has, or may be given, power to impose a sentence of death or imprisonment, or to impose any other penalty as for a criminal offence, but nothing in this subsection prevents –
(a) the imposition, in accordance with law, of disciplinary punishments (other than death or detention) on members of Bougainville Government Services; or
(b) the imposition of reasonable penalties (other than death or detention) by an association on its members for breaches of its rules.
Division 2.
Bougainville High Court.
116. ESTABLISHMENT OF THE BOUGAINVILLE HIGH COURT.
(2) The Bougainville High Court is a superior court of record and accordingly, subject to a Bougainville law, has the power to punish the offence against itself commonly known as contempt of court.
117. COMPOSITION OF THE BOUGAINVILLE HIGH .
(a) the Chief Justice of Bougainville; and
(b) such number of Judges as may be determined by or under a Bougainville law.
(2) A –
(a) Judge of the National Court may hold an appointment as a Judge of the Bougainville High Court concurrently with his appointment as a Judge of the National Court; and
(b) Judge of the Bougainville High Court may hold an appointment as a Judge of the National Court concurrently with his appointment as a Judge of the Bougainville High Court.
(3) The appointment of a Judge to –
(a) the National Court – shall be as a Judge of the National Court; and
(b) the Bougainville High Court – shall be as a Judge of the Bougainville High Court.
118. ACTING JUDGES.
(a) to fill temporarily a vacancy; or
(b) in the absence from duty for any reason of a Judge of that Court; or
(c) to meet a temporary workload or other exigency of the business of the Court.
(2) Where no person qualified for appointment under Section 122 (qualifications) to the Bougainville High Court as a Judge is available, a person so qualified may be appointed as an acting Judge on a temporary basis.
(3) An appointment under Subsection (1) –
(a) shall be made by the Bougainville Judicial Appointments Committee; and
(b) may be made without reference to the numerical limit imposed by Section 117(1) (composition of the Bougainville High Court); and
(c) may be of a non-citizen; and
(d) shall be for a period not exceeding one year, but one extension for a period not exceeding one year may be granted.
(4) An appointment under Subsection (2) –
(a) shall be made by the Bougainville Judicial Appointments Committee; and
(b) may be of a non-citizen; and
(c) shall be for a period not exceeding two years, but may be extended for a period or periods each not exceeding two years.
119. JURISDICTION OF THE BOUGAINVILLE HIGH COURT.
(2) In particular, the Bougainville High Court may –
(a) 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; and
(b) exercise jurisdiction under the Criminal Code; and
(c) subject to Subsection (3), review the exercise of judicial power by Bougainville courts established under Section 126 (establishment of other courts); and
(d) determine questions of interpretation of this Constitution; and
(e) protect and enforce human rights.
(3) Where, under a Bougainville law, a person has a right to appeal to the Bougainville High Court from a court established under Section 126 (establishment of other courts), he has an alternative (but not an additional) right of appeal to the National Court.
(4) Subject to a Bougainville law and to the Rules of Court of the Bougainville High Court, the jurisdiction of the Bougainville High Court may be exercised by a single Judge of that Court or by a number of Judges sitting together.
(5) The jurisdiction of the Bougainville High Court may be exercised by a Judge or Judges of that Court notwithstanding that it is being exercised at the same time by another Judge or Judges.
(6) The jurisdiction of the Bougainville High Court may be exercised either in court or in chambers, as provided for under a Bougainville law or the Rules of Court of the Bougainville High Court.
120. RIGHT OF APPEAL FROM BOUGAINVILLE HIGH COURT TO SUPREME COURT.
Division 3.
Appointment etc., of Judges of the Bougainville High Court.
121. BOUGAINVILLE JUDICIAL APPOINTMENTS COMMITTEE.
(a) the Chief Justice of Bougainville, who shall be Chairman; and
(b) a practising lawyer who is a Bougainvillean, appointed by the Papua New Guinea Law Society or any Bougainville equivalent; and
(c) a traditional chief or other traditional leader selected in accordance with a Bougainville law; and
(d) two members of the National Judicial and Legal Services Commission appointed by that Commission.
(2) Where the appointment of the first Chief Justice of Bougainville is under consideration there will be included in the Bougainville Judicial Appointments Committee –
(a) the –
(i) most senior Bougainville Constitutional Office-holder; and
(ii) if there is no such office occupied at the time when the appointment is under consideration – the Speaker,
who shall be Chairman; and
(b) a –
(i) Judge from a Pacific Islands country with a legal system similar to that of Bougainville or Papua New Guinea as a whole; or
(ii) a representative from an international body with a commitment to development of the rule of law and enhancing the operation of legal and judicial systems, or of similar international experience, appointed by the Bougainville Executive Council.
(3) Where the appointment (other than the first appointment for which provision is made under Subsection (2), suspension or removal from office of a Chief Justice is under consideration by the Bougainville Judicial Appointments Committee –
(a) the Chief Justice shall not be a member and Chairman of the Committee; and
(b) there will be included as a member and Chairman of the Committee –
(i) the most senior Bougainville Constitutional Office-holder; or
(ii) if there is no such office occupied at the time when the appointment, suspension or revocation of appointment is under consideration – the Speaker.
(4) The Bougainville Judicial Appointments Committee shall be responsible for the appointment, suspension or removal from office of –
(a) the Chief Justice of Bougainville; and
(b) Bougainville Judges; and
(c) Acting Judges; and
(d) the Bougainville Public Prosecutor; and
(e) the Bougainville Public Solicitor; and
(f) the Head of other Bougainville Courts,
in accordance with this Constitution and the Bougainville laws.
(5) Subject to Subsection (6), the Bougainville Judicial Appointments Committee is not subject to direction or control by any person or authority and shall exercise its powers and functions in a non-partisan manner.
(6) In considering persons for appointment under Subsection (4), the Bougainville Judicial Appointments Committee shall take into consideration the extent of a person’s knowledge of the Bougainville situation and of Bougainville Kastom.
122. QUALIFICATION.
123. APPOINTMENT OF CHIEF JUSTICE OF BOUGAINVILLE.
(2) The appointment of the Chief Justice of Bougainville may be deferred for a period of not more than two years from the date of establishment of the Bougainville High Court, or such longer period as the House of Representatives, by motion passed by an absolute majority vote, determines.
(3) The Chief Justice of Bougainville shall be appointed by the Bougainville Judicial Appointments Committee in accordance with Section 121 (Bougainville Judicial Appointments Committee).
(4) Subject to Subsection (5), the Chief Justice of Bougainville shall be appointed until the expiry of a term of 10 years or until he attains the age of 60 years, whichever shall first happen.
(5) When the Bougainville Judicial Appointments Committee is of the opinion that special circumstances exist, it may extend the retiring age specified in Subsection (4) to, but not beyond, 65 years.
(6) In addition to his other powers, functions, duties and responsibilities, the Chief Justice of Bougainville, after consultation with the other Judges (if any) of the Bougainville High Court, is responsible for the organization of the affairs and administration of the business of the Bougainville High Court (other than, except to an extent allowed by a Bougainville law, matters relating to the Bougainville Public Service).
(7) Where –
(a) there is a vacancy in the Office of Chief Justice of Bougainville; or
(b) the Chief Justice of Bougainville is absent from Bougainville or duty; or
(c) the Chief Justice of Bougainville is unable or unavailable to act; or
(d) the Chief Justice of Bougainville so directs,
the powers, functions, duties and responsibilities of the Chief Justice of Bougainville may be exercised and performed by the next most senior Bougainville Judge who is available.
(8) The question, whether the occasion for the exercise or performance of the powers, functions, duties and responsibilities of the Chief Justice by another Bougainville Judge under this section has arisen or has ceased, is non-justiciable.
(9) Where the appointment of a Chief Justice of Bougainville has been deferred under Subsection (2), the most senior Bougainville Judge shall exercise the powers and perform the functions, duties and responsibilities of the Chief Justice of Bougainville.
124. APPOINTMENT OF OTHER JUDGES.
(2) Subject to Subsection (3), a Bougainville Judge shall be appointed until the expiry of a term of 10 years or until he attains the age of 60 years, whichever first happens.
(3) Where the Bougainville Judicial Appointments Committee is of the opinion that special circumstances exist, it may extend the retiring age specified in Subsection (2) to, but not beyond, 65 years.
(4) The question, whether the occasion for the appointment of an Acting Judge has arisen or has ceased, is non-justiciable.
125. SENIORITY OF JUDGES.
Division 4.
Other Courts.
126. ESTABLISHMENT OF OTHER COURTS.
(a) Bougainville courts other than the Bougainville High Court; and
(b) courts, which are not within the Bougainville Courts, with a jurisdiction similar to, but not limited to, that of the National Village Courts,
and for their jurisdiction, functions, powers and procedures.
(2) Courts shall be established under Subsection (1) so as to meet the needs of the People of Bougainville and may include courts, comprising of or including traditional chiefs and other traditional leaders, intended to deal with matters primarily with reference to custom, or in accordance with customary procedures, or both.
(3) In making any law establishing courts referred to in Subsection (1)(b), the Autonomous Bougainville Government shall take account of Section 13 (strengthening of customary authority), 51 (traditional systems of government) and 115 (alternative dispute resolution).
(4) Bougainville laws may make provision for –
(a) the Head of other Bougainville Courts and all members and staff of courts established under Subsection (1); and
(b) the method of appointment (other than the appointment of the Head of other Bougainville Courts) and terms and conditions of appointment of the members and staff of such courts; and
(c) the grounds of removal from office of members (other than the Head of other Bougainville Courts) of such courts within the Bougainville Courts; and
(d) the removal of staff of such courts and of members of such courts not within the Bougainville Courts.
127. HEAD OF OTHER BOUGAINVILLE COURTS.
(2) The title of the holder of the office of Head of other Bougainville Courts shall be determined by a Bougainville law.
(3) The Head of other Bougainville Courts shall be appointed by the Bougainville Judicial Appointments Committee.
(4) Unless and except to the extent that a Bougainville law provides otherwise, the Head of other Bougainville Courts is ex officio a member of all courts established under Section 126 (establishment of other courts) within the Bougainville Courts and, if provision is made for grades of powers, functions or jurisdiction within such courts, has all the powers, functions and jurisdiction of the highest grades.
Division 5.
The Bougainville Public Prosecutor and the Bougainville Public Solicitor.
128. BOUGAINVILLE PUBLIC PROSECUTOR AND BOUGAINVILLE PUBLIC SOLICITOR.
(a) at such time as it considers suitable – establish an office of Bougainville Public Prosecutor; and
(b) at such time as it considers suitable – establish an office of Bougainville Public Solicitor.
(2) The Bougainville Public Prosecutor and the Bougainville Public Solicitor shall be appointed by the Bougainville Judicial Appointments Committee.
(3) Subject to this Constitution, in the performance of his functions under this Constitution the Bougainville Public Prosecutor is not subject to direction or control by any person or authority.
(4) The powers and protections of the Bougainville Public Prosecutor and the Bougainville Public Solicitor may be further provided for by future amendment of this Constitution.
129. FUNCTIONS OF THE BOUGAINVILLE PUBLIC PROSECUTOR AND THE BOUGAINVILLE PUBLIC SOLICITOR.
(a) in accordance with Bougainville laws and the Rules of Court of the Bougainville High Court, subject to Section 177(b) (powers of Bougainville Ombudsman in relation to criminal misconduct), to control the exercise and performance of the prosecution (including appeals and the refusal to initiate, and the discontinuance of, prosecutions) before the Bougainville High Court, and before other courts as provided by or under Bougainville laws; and
(b) to bring or to decline to bring proceedings under Part 13 (Leadership Code) for misconduct in office.
(2) The functions of the Bougainville Public Solicitor are to provide legal aid, advice and assistance for persons in need of help by him, in accordance with a Bougainville law made by an absolute majority vote
Division 6.
Removal from Office of Senior Judicial and Legal Office-holders.
130. REMOVAL FROM OFFICE OF CHIEF JUSTICE OF BOUGAINVILLE, ETC.,.
(a) in accordance with this Division; or
(b) in accordance with Part 13 (Leadership Code).
131. PROCEDURES FOR REMOVAL.
(a) has been convicted of a criminal offence; or
(b) has nominated for election to a political office; or
(c) has actively engaged in politics; or
(d) is guilty of serious misconduct in office; or
(e) is unable (whether from physical or mental infirmity or otherwise) to perform the duties of his office; or
(f) has been declared bankrupt by a court of competent jurisdiction and remains bankrupt,
and that it is proper that the question of his removal from office should be investigated, it may –
(g) appoint a tribunal under Section 132 (constitution of tribunals, etc.,); and
(h) refer the matter, together with a statement of the reasons for its opinion, to the tribunal for investigation and report to it.
132. CONSTITUTION OF TRIBUNALS, ETC.,.
(a) a Judge or former Judge of the Bougainville High Court or of the Supreme Court or of the National Court; or
(b) a Judge or former Judge of a court of unlimited jurisdiction of a country with a legal system similar to that of Bougainville or Papua New Guinea as a whole, or of a court to which an appeal from such a court lies.
(2) The tribunal shall make due inquiry into any matter referred to it without being limited by legal formalities or the rules of evidence, and shall inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice.
(3) If the tribunal reports that there are good grounds under Section 131(c) to (f) (procedures for removal) for removing the person from office, the Bougainville Judicial Appointments Committee shall by notice in writing to the person, remove him from office.
(4) The Committee shall send a copy of the notice, together with a copy of the report of the tribunal, to –
(a) the Speaker for presentation to the House of Representatives; and
(b) the Bougainville Executive Council; and
(c) the National Judicial and Legal Services Commission.
133. SUSPENSION.
(2) Unless otherwise determined by the Bougainville Judicial Appointments Committee, the suspension shall be on full pay.
(3) Where at the time of the suspension, a suspended Bougainville Judge or the Head of other Bougainville Courts was dealing with any judicial proceedings, he may continue and complete those proceedings, unless the Bougainville Judicial Appointments Committee in the case of the Chief Justice, or the Chief Justice in any other case, otherwise orders.
Division 7.
Miscellaneous.
134. RULES OF COURT.
(2) Without limiting the generality of Subsection (1), the Rules of Court may make provision for and in respect of –
(a) the practice and procedures in the offices of the Bougainville High Court; and
(b) the service and execution of process and judgements of the Bougainville High Court; and
(c) the service and execution within Bougainville of process and judgements of foreign courts; and
(d) the service and execution within Bougainville of process and judgements of courts in the Bougainville Courts other than the Bougainville High Court and Bougainville courts established under Section 126 (establishment of other courts); and
(e) the issue by the Bougainville High Court of letters of request for the service in a foreign country of process of a Bougainville court or for the examination of witnesses in a foreign country; and
(f) the costs of and relating to proceedings in the Bougainville High Court; and
(g) the methods of pleading; and
(h) the attendance of witnesses and the taking of evidence; and
(i) the means by which particular facts may be proved, and the manner in which evidence of particular facts may be given, in any proceedings or in any application in connection with, or at any stage of, any proceedings; and
(j) simplified procedures for proceedings under Section 183 (enforcement of guaranteed rights and freedoms).
(3) The Rules of Court may require or permit legal argument to be submitted in writing.
(4) If a Bougainville law comes into force that is inconsistent with a Rule of Court, the Rule of Court ceases to have effect to the extent of the inconsistency.
(5) All Rules of Court shall be forwarded by the Chief Justice of Bougainville to the Speaker, as soon as practicable after being made, for presentation to the House of
135. LACK OF PROCEDURAL PROVISION.
136. JURIES AND ASSESSORS.
(a) assessors –
(i) being traditional chiefs or other traditional leaders for the purpose of assisting the court in understanding custom and customary practices; and
(ii) for the purpose of assisting the court in other specialized matters; and
(b) juries.
137. REPORTS OF BOUGAINVILLE JUDGES.
(2) Nothing in Subsection (1) prevents the Bougainville Judges from making, on their own initiative, or in accordance with a Bougainville law, other reports on any aspect of the work of the Bougainville Courts.
PART 10. – BOUGAINVILLE GOVERNMENT SERVICES.
Division 1.
Introductory.
138. ESTABLISHMENT OF BOUGAINVILLE GOVERNMENT SERVICES.
(a) the Bougainville Public Service;
(b) the Bougainville Police Service;
(c) the Bougainville Correctional Service.
(2) Bougainville laws may make provision for and in respect of the establishment, powers and functions and all other matters relating to other Bougainville Government Services.
(3) Until the establishment of the Bougainville Government Services referred to in Subsection (1), the Bougainville Peace Agreement as implemented in the National Constitutional Laws shall determine the extent to which the equivalent State Services of the National Government will continue to operate.
139. CIVILIAN CONTROL.
140. RESPONSIBILITY OF HEADS OF BOUGAINVILLE GOVERNMENT SERVICES TO BOUGAINVILLE EXECUTIVE COUNCIL.
(a) the exercise of his powers and the performance of his functions as such Head; and
(b) the efficient conduct and performance of the Service of which he is the Head.
(2) The responsibility of the Head of a Bougainville Government Service to the Bougainville Executive Council under Subsection (1) shall be effected through the Minister with the political responsibility under Section 85(4) (responsibilities) for that Service.
141. DECLARATION OF LOYALTY ETC.,.
(a) the Declaration of Loyalty in accordance with Section 6 (Declaration of Loyalty to Bougainville); and
(b) until any change in the status of Bougainville that may occur following the Bougainville Referendum –
(i) the Oath of Allegiance in accordance with Section 7 (Oath of Allegiance); and
(ii) the Declaration of Loyalty in accordance with Section 6 (Declaration of Loyalty), of the National Constitution.
Division 2.
Bougainville Public Services Commission.
142. ESTABLISHMENT OF THE BOUGAINVILLE PUBLIC SERVICES COMMISSION.
(2) The Commission shall consist of three members who shall be appointed for a term of five years by the Bougainville Senior Appointments Committee, which for the purpose shall include two persons appointed by the National Executive Council.
(3) Unless there are exceptional circumstances, all the members of the Commission must have gained substantial experience in the National Public Service or in the Bougainville Public Service.
(4) Subject to this Constitution, a Bougainville law shall make provision for and in respect of the Commission and for and in respect of its constitution, powers and procedures.
143. FUNCTIONS OF THE COMMISSION.
(a) the review of personnel matters connected with the Bougainville Public Service; and
(b) the continuous review of the Bougainville Government Services and the services of other Bougainville governmental bodies and for advising, either on its own initiative or on request, the Bougainville Executive Council and any authority responsible for any of those Services, on organizational matters in relation to those Services or bodies.
(2) The Bougainville Public Services Commission has such other functions as may be prescribed under this Constitution or a Bougainville law.
(3) In carrying out its functions under Subsection (1)(b), the Commission –
(a) shall take into account the policy of the Autonomous Bougainville Government when advising the Bougainville Executive Council and other authorities responsible for those Services; and
(b) shall not have any power to direct or control a Bougainville Government Service or the services of other Bougainville governmental bodies.
(4) The Bougainville Public Services Commission shall, in respect of each calendar year, prepare and forward to the President for presentation to the House of Representatives, a report on the advice it has given during the year to the Bougainville Executive Council or other authorities in accordance with Subsection (1)(b) indicating in particular the nature of the advice given and whether or not that advice was accepted.
144. INDEPENDENCE OF THE COMMISSION.
145. PERSONNEL MATTERS.
Division 3.
Bougainville Public Service .
146. BOUGAINVILLE PUBLIC SERVICE.
(a) standards for management and control of the Bougainville Public Service ; and
(b) work value and standard for pay for the Bougainville Public Service; and
(c) classification and grade structures in the Bougainville Public Service,
compatible with those of the National Public Service.
147. HEAD OF BOUGAINVILLE PUBLIC SERVICE.
(2) The Head of the Bougainville Public Service shall be appointed (and may be suspended or removed from office for just cause) by the Bougainville Senior Appointments Committee.
(3) A Bougainville law shall make provision for the title of the office, term of appointment, terms and conditions of employment and other matters relating to the office of Head of the Bougainville Public Service.
(4) The Head of the Bougainville Public Service shall be responsible to the Bougainville Executive Council in accordance with Section 140 (responsibility of Heads of Bougainville Government Services to Bougainville Executive Council).
Division 4.
Bougainville Police Service.
148. BOUGAINVILLE POLICE SERVICE.
(a) to serve the community and to preserve peace and good order in Bougainville; and
(b) to maintain and, as necessary, enforce all laws that apply in Bougainville in an impartial and objective manner; and
(c) to co-operate fully in the co-operative policing arrangements as set out in Paragraphs 226, 227 and 228 of the Bougainville Peace Agreement.
(2) In carrying out its functions under Subsection (1), the Bougainville Police Service shall at all times –
(a) have respect for human rights; and
(b) develop rehabilitatory and reconciliatory concepts of policing; and
(c) work in harmony and partnership with communities and encourage community participation in its activities; and
(d) support and work with traditional chiefs and other traditional leaders to resolve disputes and maintain law and order in communities.
(3) The Minister responsible for Bougainville Police Service has no power of command within the Bougainville Police Service except as provided for by this Constitution or a Bougainville law.
(4) In so far as it is a function of the Bougainville Police Service to lay, prosecute or withdraw charges in respect of offences, the members of the Bougainville Police Service are not subject to direction or control by –
(a) any person outside the Bougainville Police Service; or
(b) where acting under any arrangement with the National Police Force, any person outside the National Police Force.
149. CHIEF OF BOUGAINVILLE POLICE.
(2) The Chief of Bougainville Police shall be appointed (and may be suspended or removed from office for just cause) by the Bougainville Senior Appointments Committee, which for the purpose shall include the National Commissioner of Police or his representative and one other representative of the National Government appointed by the National Executive Council.
(3) A Bougainville law shall make provision for the period of appointment, terms and conditions of employment, rank and other matters relating to the Chief of Bougainville Police.
(4) The Chief of Bougainville Police shall be responsible to the Bougainville Executive Council in accordance with Section 140 (responsibility of Heads of Bougainville Government Services to the Bougainville Executive Council).
150. FURTHER PROVISIONS RELATING TO BOUGAINVILLE POLICE SERVICE.
(a) the structures and organization of the Bougainville Police Service; and
(b) the terms and conditions of service of the Bougainville Police Service; and
(c) the core training and personnel development arrangements for the Bougainville Police Service; and
(d) such other matters relating to the Bougainville Police Service as are necessary,
consistent with those of the National Police Force.
Division 5.
Bougainville Correctional Service.
151. BOUGAINVILLE CORRECTIONAL SERVICE.
(2) The Bougainville Correctional Service shall –
(a) develop concepts of rehabilitation; and
(b) develop alternative methods of dealing with offenders; and
(c) involve the community and encourage community participation in its work and encourage the integration of offenders into their communities.
(3) Subject to this Constitution, Bougainville laws shall make provision for –
(a) the structures and organization of the Bougainville Correctional Service; and
(b) the terms and conditions of service of the Bougainville Correctional Service; and
(c) the core training and personnel development arrangements for the Bougainville Correctional Service; and
(d) such other matters relating to the Bougainville Correctional Service as are necessary,
consistent with those of the National Correctional Service.
152. CHIEF OF THE BOUGAINVILLE CORRECTIONAL SERVICE.
(2) The Chief of the Bougainville Correctional Service shall be appointed (and may be suspended or removed from office for just cause) by the Bougainville Senior Appointments Committee, which for the purpose shall include the National Commissioner for Correctional Service or his representative and one other representative of the National Government appointed by the National Executive Council.
(3) A Bougainville law shall make provision for the term of appointment, terms and conditions of employment, rank and other matters relating to the Chief of the Bougainville Correctional Service.
(4) The Chief of the Bougainville Correctional Service shall be responsible to the Bougainville Executive Council in accordance with Section 140 (responsibility of Heads of Autonomous Bougainville Government Services to Bougainville Executive Council).
PART 11. – FINANCES AND FINANCIAL MANAGEMENT AND CONTROL.
Division 1.
General.
153. GENERAL PRINCIPLES RELATING TO FINANCES AND FINANCIAL MANAGEMENT.
(a) aim to achieve fiscal self-reliance as soon as possible; and
(b) aim to make all governmental institutions and Bougainville governmental bodies (including Bougainville Government Services) and levels of government self-sustaining as far as practicable; and
(c) take full account of cost implications in making decisions relating to –
(i) the establishment and composition of governmental institutions and Bougainville governmental bodies (including Bougainville Government Services); and
(ii) the establishment of procedures for consultation through plebiscite under Section 195 (consultation through plebiscite); and
(iii) the establishment of procedures for participation in, and poll for, law-making under Section 196 (participation in, and poll for, law-making); and
(iv) the conduct of a plebiscite under Section 195 (consultation through plebiscite); and
(v) the conduct of a poll under Section 196 (participation in, and poll for, law-making); and
(d) aim to develop and adopt the best possible financial management, accounting and budgeting practices; and
(e) in the interests of achieving fiscal self-reliance and good financial management –
(i) continue to rely on traditional chiefs and other traditional leaders in the governance of their communities; and
(ii) utilize the private sector in the provision of goods and services.
(2) The question as to whether the Autonomous Bougainville Government has carried out the requirements imposed on it under Subsection (1) is non-justiciable.
Division 2.
Outline of Finances of Autonomous Bougainville Government and Finance Administration.
154. OUTLINE OF FINANCES OF AUTONOMOUS BOUGAINVILLE GOVERNMENT AND FINANCE ADMINISTRATION.
(a) grants from the National Government, being –
(i) a recurrent unconditional grant, payable annually until fiscal self-reliance; and
(ii) a Police Grant, payable annually; and
(iii) restoration and development grants, payable annually; and
(iv) conditional grants for specific purposes; and
(v) an establishment grant,
as provided for in Section 326 (grants) of the National Constitution and Division III.3 (financial grants and assistance) of the Organic Law on Peace- Building in Bougainville – Autonomous Bougainville Government and Bougainville Referendum; and
(b) revenue from taxes, being –
(i) personal income tax collected in Bougainville; and
(ii) 30 % of value added tax collected in Bougainville; and
(iii) after fiscal self-reliance, a share to be agreed with the National Government of revenues from company tax, customs duties and value added tax collected in Bougainville; and
(c) revenue from taxes which may be imposed by the National Government other than –
(i) company tax; and
(ii) value added tax; and
(iii) customs duties; and
(d) revenue from the following taxes which may be imposed by the Autonomous Bougainville Government, being: –
(i) liquor licensing fees;
(ii) fees for licences to operate or carry on gambling, lotteries and games of chance;
(iii) developed property tax;
(iv) motor vehicle registration tax;
(v) road users tax;
(vi) fees and other imposts –
(A) from the operation of functions available to the Autonomous Bougainville Government under Section 290 (functions and powers available to the Autonomous Bougainville Government) and transferred to the Autonomous Bougainville Government; and
(B) from the operation of functions in respect of which the Autonomous Bougainville Government has legislated and has reached agreement with the National Government under Section 292 (subjects not specified in Sections 289, 290 and 291) of the National Constitution; and
(C) as have been available to Provincial Governments and Local - level Governments; and
(e) foreign aid obtained by the Autonomous Bougainville Government in accordance with Section 327 (foreign aid) of the National Constitution; and
(f) moneys borrowed by the Autonomous Bougainville Government –
(i) by way of foreign loans, in accordance with required approvals and other requirement of the Bank of Papua New Guinea; and
(ii) by way of domestic loans, in accordance with regulation of the banking system by the Bank of Papua New Guinea,
as permitted by Section 328 (other financial powers and accountability) of the National Constitution; and
(g) revenue from fisheries, being –
(i) the distribution to the Autonomous Bougainville Government of National Government fishing revenues in accordance with Paragraph 86 of the Bougainville Peace Agreement; and
(ii) the fees and other revenues obtainable from the allocation to the Autonomous Bougainville Government of the quota of domestic fishing licences for highly migratory and straddling fish stocks; and
(h) the share of revenues available to the Autonomous Bougainville Government from activities in areas of sea and seabed beyond the guaranteed three nautical mile limit and within the Exclusive Economic Zone and the continental shelf associated with the Autonomous Region of Bougainville; and
(i) in accordance with Paragraph 95 of the Bougainville Peace Agreement, revenue from telecommunications services which the Autonomous Bougainville Government may provide in Bougainville; and
(j) moneys derived from commercial activities relating to –
(i) the leasing, operation or management of business concessions in aerodromes or shipping ports; and
(ii) the sale of Bougainville postage stamps; and
(k) investments by the Autonomous Bougainville Government or in which the Autonomous Bougainville Government has a share.
(2) The Autonomous Bougainville Government may –
(a) establish its own tax regime for all taxes other than company tax, value added tax and customs duties; and
(b) fix rates in respect of –
(i) subject to Subsection (3), personal income tax; and
(ii) subject to Subsection (4), after fiscal self-reliance, company tax; and
(iii) all taxes under its own tax regime; and
(c) establish a Bougainville tax office, which may collect –
(i) all or any taxes under its own tax regime; and
(ii) by agreement with the Internal Revenue Commission, for and on behalf of the Internal Revenue Commission, company tax, value added tax and customs duties.
(3) Until fiscal self-reliance, the rate of personal income tax for Bougainville may be adjusted by the Autonomous Bougainville Government under Subsection (2)(b)(i) by no more than five from the number of percent at which that tax is fixed for that time by the National Government.
(4) The rate of company tax for Bougainville which may be set by the Autonomous Bougainville Government under Subsection (2)(b)(ii) shall not vary at any time by more or less than five from the number of percent at which the company tax is fixed for that time by the National Government.
(5) The Autonomous Bougainville Government shall, as soon as practicable, introduce in the House of Representatives such Bougainville laws as are necessary to enable the Autonomous Bougainville Government to exercise the powers relating to fiscal arrangements under the National Constitutional Laws and this section.
Division 3.
House of Representatives and Finance.
155. FINANCIAL RESPONSIBILITY OF THE HOUSE OF REPRESENTATIVES.
(2) For each fiscal year there shall be a Bougainville Budget comprising –
(a) estimates of finance proposed to be raised or received and estimates of proposed expenditure by the Autonomous Bougainville Government in respect of that fiscal year; and
(b) an appropriation for the expenditure for the service of that year in respect of the general public services; and
(c) such other supplementary Budgets and appropriations for expenditure as are necessary.
(3) As required by Paragraph 167 of the Bougainville Peace Agreement, the Autonomous Bougainville Government will not propose a deficit Budget without the prior written approval of the National Minister responsible for finance matters.
156. EXECUTIVE INITIATIVE.
(2) The House of Representatives may reduce, but shall not increase or re-allocate, the amount or incidence of, or change the purpose of, any proposed taxation, loan or expenditure.
157. REVENUE AND EXPENDITURE WITHOUT PRIOR APPROVAL.
(2) The authority conferred by Subsection (1) lapses when the House of Representatives has made provision for the public expenditure for the fiscal year in question, and any amounts expended by virtue of Subsection (1) are a charge against the expenditure so provided for and shall be properly brought to account accordingly.
Division 4.
Bougainville Auditor General.
158. ESTABLISHMENT OF OFFICE OF BOUGAINVILLE AUDITOR-GENERAL.
(2) The Bougainville Auditor-General shall be appointed for a period of five years by the Bougainville Senior Appointments Committee, which shall include for the purpose two persons appointed by the National Executive Council.
(3) In the performance of his functions under this Constitution, the Bougainville Auditor-General is not subject to direction or control by any person or authority.
159. FUNCTIONS OF THE BOUGAINVILLE AUDITOR-GENERAL.
(a) the public accounts of the Autonomous Region of Bougainville; and
(b) the control of, and transactions with or concerning, the public moneys and the property of Bougainville.
(2) Unless other provision is made by law in respect of the inspection and audit of them, Subsection (1) extends to the accounts, finances and property of –
(a) all arms, Departments, agencies and instrumentalities of the Autonomous Bougainville Government; and
(b) all bodies set up by a Bougainville law, or by executive or administrative act of the Bougainville Executive Council, for governmental or official purposes.
(3) Notwithstanding that other provision for inspection or audit is made as provided in Subsection (2), the Bougainville Auditor-General may, if he thinks it proper to do so, inspect and audit, and report to the House of Representatives on, any accounts, finances or property of an institution referred to in that subsection, insofar as they relate to, or are derived from, public moneys or property of Bougainville.
(4) A Bougainville law may expand on and may provide in more detail for, the functions of the Bougainville Auditor-General under Subsections (1), (2) and (3), and may confer on the Bougainville Auditor-General additional functions and duties consistent with the performance of the functions and duties conferred and imposed by Subsections (1), (2) and (3).
Division 5.
Public Accounts Committee.
160. ESTABLISHMENT OF THE PUBLIC ACCOUNTS COMMITTEE.
161. FUNCTIONS OF THE COMMITTEE.
(2) Subsection (1) extends to any accounts, finances and property that are subject to inspection and audit by the Bougainville Auditor-General under Section 159(2) (functions of the Bougainville Auditor-General) and to reports by the Bougainville Auditor-General under that subsection or Section 159(3) (functions of the Bougainville Auditor-General).
(3) A Bougainville law may expand and provide in more detail for the functions of the Committee under Subsections (2) and (3) and may confer on the Committee additional functions and duties consistent with the performance of the functions and duties conferred and imposed by those subsections.
Division 6.
Bougainville Salaries and Remuneration Commission.
162. THE BOUGAINVILLE SALARIES AND REMUNERATION COMMISSION.
(2) Provision for the composition of the Bougainville Salaries and Remuneration Commission shall be made by amendment of this Constitution or by a Bougainville law made by an absolute majority vote.
163. FUNCTIONS, ETC., OF THE COMMISSION.
(a) persons holding elective office under this Constitution; and
(b) Bougainville Constitutional Office-holders (including Bougainville Judges); and
(c) the Heads of Bougainville Government Services; and
(d) such other persons as, by amendment of this Constitution, are specified as persons to whom this section applies.
(2) In making a recommendation under Subsection (1), the Bougainville Salaries and Remuneration Commission shall –
(a) obtain from and take into account advice from the National Salaries and Remuneration Commission on the maintenance of relativities of salaries and conditions of employment with those applicable to similar offices elsewhere in Papua New Guinea and at the National level; and
(b) consider the size of population of Bougainville and extent of the resources available to the Autonomous Bougainville Government and such of the matters referred to in Section 153 (general principles relating to finances and financial management) as are relevant.
(3) The House of Representatives –
(a) shall determine the salaries, allowances and benefits, financial or otherwise (including pensions or retirement benefits if they are not otherwise provided for by law) of persons referred to in Subsection (1) in accordance with a recommendation of the Bougainville Salaries and Remuneration Commission under this section; and
(b) may accept or reject, but may not amend, any recommendation from the Bougainville Salaries and Remuneration Commission.
(4) A Bougainville law shall make provision for the powers and procedures of the Bougainville Salaries and Remuneration Commission.
(5) The provisions of this section apply notwithstanding the provisions of any law that prescribes a code of conduct for leaders or imposes a duty, restraint or obligation on leaders acquiring a benefit or gain.
164. FUNCTIONS OF NATIONAL SALARIES AND REMUNERATION COMMISSION.
(2) In carrying out its functions under Subsection (1), the Salaries and Remuneration Commission shall include two persons nominated by the Bougainville Executive Council in accordance with a Bougainville law.
(3) The Autonomous Bougainville Government may make representations to the Salaries and Remuneration Commission concerning the comparative population size and resources of Bougainville and such of the matters referred to in Section 153 (general principles relating to finances and financial management) as are relevant.
(4) The House of Representatives –
(a) shall determine the salaries, allowances and benefits, financial and otherwise (including pensions and retirement benefits if they are not otherwise provided for by law) of persons referred to in Section 163(1) (functions, etc., of the Commission) in accordance with a recommendation of the Salaries and Remuneration Commission under this section; and
(b) may accept or reject, but may not amend, a recommendation from the Salaries and Remuneration Commission under this section.
PART 12. – THE BOUGAINVILLE OMBUDSMAN.
165. THE BOUGAINVILLE OMBUDSMAN.
(2) The Bougainville Ombudsman shall be appointed by the Bougainville Senior Appointments Committee, which for the purpose shall include two persons appointed by the Ombudsman Appointments Committee referred to in Section 217 (The Ombudsman Commission) of the National Constitution.
(3) The salary and other conditions of employment of the Bougainville Ombudsman shall be not less than or inferior to the salary and other conditions of employment of a Bougainville Judge without taking into account any conditions of employment personal to that Judge.
(4) In the performance of his functions under Section 167 (functions and powers of the Bougainville Ombudsman), the Bougainville Ombudsman –
(a) is not subject to direction or control by any person or authority; and
(b) shall work with traditional chiefs and other traditional leaders and take account of traditional customs as far as is practicable.
(5) The proceedings conducted by the Bougainville Ombudsman are not subject to review in any way, except by the Bougainville High Court, the Supreme Court or the National Court on the ground that he has exceeded his jurisdiction or has failed to comply with the principles of natural justice.
(6) Subject to this Constitution, a Bougainville law made by an absolute majority vote may make further provision in respect of the qualifications for appointment, powers, procedures and immunity of the Bougainville Ombudsman.
166. PURPOSES OF THE BOUGAINVILLE OMBUDSMAN.
(a) to ensure that all Bougainville governmental bodies are responsive to the needs and aspirations of the People; and
(b) to help in the improvement of the work of Bougainville governmental bodies and the elimination of unfairness and discrimination by them; and
(c) to help in the elimination of unfair or otherwise defective legislation and practices affecting or administered by Bougainville governmental bodies; and
(d) to supervise the enforcement of Part 13 (Leadership Code); and
(e) to provide, or assist in, training courses for persons intending to nominate as candidates for election as President or as a member of the House of Representative to understand the Bougainville Objectives and Directive Principles, the Leadership Code, other provisions of this Constitution and the roles and responsibilities of President and of members of the House of Representatives.
167. FUNCTIONS AND POWERS OF THE BOUGAINVILLE OMBUDSMAN.
168. REPORTS BY THE BOUGAINVILLE OMBUDSMAN.
(2) Nothing in Subsection (1) prevents the Bougainville Ombudsman from making, on his own initiative or at the request of the House of Representatives or of the Bougainville Executive Council, other reports on any aspect of the functions and workings of the Bougainville Ombudsman.
PART 13. – LEADERSHIP CODE.
169. APPLICATION OF LEADERSHIP CODE.
(2) The provisions of this Part apply to and in relation to –
(a) the Speaker; and
(b) the President, Vice-President and members of the Bougainville Executive Council; and
(c) members of the House of Representatives; and
(d) all Bougainville Constitutional Office-holders within the meaning of Section 189 (Bougainville Constitutional Office-holders); and
(e) the Bougainville Boundaries Commissioner; and
(f) all heads of Departments of the Bougainville Public Service; and
(g) the Chief of Bougainville Police; and
(h) the Chief of the Bougainville Correctional Service; and
(i) the Clerk of the House of Representatives; and
(j) executive members of political parties registered under a Bougainville law; and
(k) persons holding such public offices as are declared under Subsection (4) to be offices to and in relation to which this Part applies.
(3) This Part applies to and in relation to a person referred to in Subsection (2) not only in the office referred to in that subsection but also in any other office or position that he holds under any law by virtue of that office.
(4) A Bougainville law may declare any public office (including an office in any level of formal government below the level of the Autonomous Bougainville Government) to be an office to and in relation to which this Part applies.
(5) In the event of doubt as to whether a person is a person to whom this Part applies, the opinion of the Bougainville Ombudsman is final.
(6) Where a person referred to in Subsection (2) is also subject to the provisions of Division III.2 (Leadership Code) of the National Constitution, any finding against him of misconduct in office and any subsequent penalty imposed on him pursuant to Division III.2 (Leadership Code) of the National Constitution is deemed to be a finding against him of misconduct in office and a penalty imposed under this Part.
170. CUSTOMARY STANDARDS OF LEADERSHIP.
171. OTHER RESPONSIBILITIES OF OFFICE.
(a) to comply with the provisions of Section 170 (customary standards of leadership) and with the provisions relating to the responsibilities of leadership set out in a Bougainville law; and
(b) not to –
(i) place himself in a position in which he has or could have a conflict of interests or might be compromised when discharging his public or official duties; or
(ii) demean his office or position; or
(iii) allow his public or official integrity, or his personal integrity, to be called into question; or
(iv) endanger or diminish respect for and confidence in the integrity of government in Bougainville.
172. PARTICULAR RESPONSIBILITIES OF OFFICE.
(2) It is the further duty of a person to whom this Part applies –
(a) to ensure, as far as is within his lawful power, that his spouse and children and any other persons for whom he is responsible (whether morally, legally or by custom), including nominees, trustees and agents, do not conduct themselves in a way that might be expected to give rise to doubt in the public mind as to his complying with his duties under this section; and
(b) if necessary, to dissociate himself publicly from any activity or enterprise of any of his associates, or of a person referred to in Paragraph (a), that might be expected to give rise to such a doubt.
(3) The Bougainville Ombudsman may, subject to this Part and to any Bougainville law made for the purpose of this Part, give directions, either generally or in a particular case, to ensure the attainment of the objects of this section.
(4) A person to whom this Part applies who –
(a) is convicted of an offence in respect of his office or position or in relation to the performance of his functions or duties; or
(b) fails to comply with a direction under Subsection (3) or otherwise fails to carry out the obligations imposed by Subsection (2) or by Section 170 (customary standards of leadership) or 171 (other responsibilities of office),
is guilty of misconduct in office.
173. FURTHER PROVISIONS CONCERNING THE LEADERSHIP CODE.
(a) may give to the Bougainville Ombudsman any powers that are necessary or convenient for attaining the objects of this Part and of the Bougainville law; and
(b) shall empower the Bougainville Ombudsman to require a person to whom this Part applies to dispose of, or place under the control of the public trustee, or of an authority appointed by the Bougainville Ombudsman, any assets or income when this seems desirable for attaining the objects of this Part; and
(c) may prescribe specific acts that constitute misconduct in office; and
(d) may create offences (including offences by persons to whom this Part applies and offences by other persons); and
(e) shall provide for the investigation by the Bougainville Ombudsman of alleged or suspected misconduct in office, and shall confer on him any powers that are necessary or convenient for that purpose; and
(f) shall provide that the Bougainville High Court –
(i) shall determine any cases of alleged or suspected misconduct in office referred to it; and
(ii) shall, subject to Subsection (2), recommend to the appropriate authority that a person found guilty of misconduct in office be dismissed from the office or position; and
(iii) may, where the circumstances of the case disclose that a person found guilty of misconduct in office benefited financially or materially from his misconduct, order that the person pays to the Autonomous Bougainville Government –
(A) the amount of the financial benefit; or
(B) an amount equal to the value of the material benefit,
and such order shall operate as an order of the Bougainville High Court; and
(g) may provide for the suspension from office of a person to whom this Part applies pending the investigation, prosecution and determination of any case of alleged misconduct or suspected misconduct in office by him; and
(h) may make any other provision that is necessary or convenient for attaining the objects of this Part.
(2) The Bougainville law referred to in Subsection (1) may provide for the imposition of penalties (including reprimand, fine, imprisonment and suspension from office) as an alternative to dismissal from office or position and the Bougainville High Court may recommend that such alternative penalty be imposed and the appropriate authority shall act in accordance with the recommendation.
(3) For the purpose of Subsection (1)(f)(ii) and (2), the “appropriate authority” –
(a) in relation to –
(i) a person holding an office referred to in Section 169 (application of Leadership Code); or
(ii) a person holding an office that is declared under Section 169(4) (application of Leadership Code) to be an office to and in relation to which this Part applies,
means the authority which, in accordance with this Constitution or a Bougainville law, appointed him; and
(b) in relation to a person holding any other office to which this Part applies, means the appropriate appointing authority.
(4) Proceedings under Subsection (1)(f) are not judicial proceedings but are subject to natural justice, and –
(a) no such proceedings are a bar to any other proceedings provided for by law; and
(b) no other proceedings provided for by law are a bar to proceedings under Subsection (1)(f).
174. PROSECUTION FOR MISCONDUCT IN OFFICE.
(2) If the Bougainville Public Prosecutor fails to prosecute the matter within a reasonable period, the Bougainville Ombudsman may prosecute it in his stead.
175. INVESTIGATION AND PROSECUTION MAY BE CARRIED OUT WHERE PERSON NO LONGER HOLDS OFFICE.
(2) Where the Bougainville High Court determines that a person to whom Subsection (1) applies was guilty of misconduct in office, it may order that he is deemed to have been dismissed from office for misconduct in office and any disqualification under Section 176 (disqualifications on dismissal) shall run on and from the date on which the Bougainville High Court determines that he was guilty of misconduct in office.
176. DISQUALIFICATIONS ON DISMISSAL.
(a) has been dismissed from office; or
(b) is deemed to have been dismissed from office,
under this Part for misconduct in office is not eligible –
(c) for election to any elective public office; or
(d) for appointment to any office the holder of which is a person to whom this Part applies,
for a period of three years, after the date of his dismissal or deemed dismissal, or for such longer period up to a maximum of the remaining period of his life, as the Bougainville High Court determines.
(2) The Bougainville High Court may, where the circumstances leading to dismissal or deemed dismissal appear to it to be of such a less serious nature that the three year period referred to in Subsection (1) is harsh, order that the disqualification be for such lesser period as the Bougainville High Court thinks fit.
(3) In the event of doubt as to whether an office or position is an office or position to which Subsection (1)(c) or (d) applies, the opinion of the Bougainville Ombudsman is final.
177. POWERS OF BOUGAINVILLE OMBUDSMAN IN RELATION TO CRIMINAL MISCONDUCT.
(a) in the first instance, refer the matter to the Bougainville Public Prosecutor or to the Bougainville Police Service for criminal prosecution of the person; and
(b) where no such prosecution has been initiated within a reasonable time from the date of referral under Paragraph (a), himself initiate the appropriate criminal prosecution
PART 14. – HUMAN RIGHTS.
Division 1.
Rights.
178. BASIC RIGHTS.
179. ADDITIONAL RIGHTS.
Division 2.
Qualifications on Rights.
180. QUALIFICATIONS ON THE QUALIFIED RIGHTS.
(a) freedom from forced labour;
(b) freedom from arbitrary search and entry;
(c) freedom of conscience, thought and religion;
(d) freedom of expression;
(e) freedom of assembly and association;
(f) freedom of employment;
(g) right to privacy;
(h) right to vote and stand for public office;
(i) right to freedom of information;
(j) right to freedom of movement;
(k) protection from unjust deprivation of property.
(2) A Bougainville law referred to in Subsection (1) may regulate or restrict the right or freedom to the extent that the regulation or restriction is necessary –
(a) taking account of the National Goals and Directive Principles and the Basic Social Obligations of the National Constitution and Part 3 (Bougainville Objectives and Directive Principles) of this Constitution, for the purpose of giving effect to the public interest in any one or more of the following cases:
(i) public safety;
(ii) public order;
(iii) public welfare;
(iv) public health (including plant and animal health);
(v) the protection of children and persons under disability (whether legal or practical);
(vi) the development of under-privileged or less advanced groups or areas; or
(b) in order to protect the exercise of the rights and freedoms of others; or
(c) to make reasonable provision when the exercise of one such right may conflict with the exercise of another,
to the extent that the law is reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.
(3) A Bougainville law referred to in Subsections (1) and (2) shall –
(a) be expressed to be a law regulating or restricting a right or freedom referred to in Subdivision III.3.C (qualified rights) of the National Constitution (being the qualified rights referred to in Subsection (1)(a) to (k) inclusive); and
(b) specify the right or freedom that it regulates or restricts; and
(c) specify the purpose for which the regulation or restriction is necessary; and
(d) be made, and be certified by the Speaker in his certificate under Section 66 (certification as to making of laws) to have been made, by an absolute majority vote.
(4) The burden of showing that a Bougainville law is a law that complies with this section is on the party relying on its validity.
181. REASONABLY JUSTIFIABLE IN A DEMOCRATIC SOCIETY.
(2) Only the Bougainville High Court, the Supreme Court, or the National Court may declare that a Bougainville law is not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind and unless the Court is satisfied that the Bougainville law was at one time so justifiable, such a declaration operates as a repeal of the law from the date of the declaration.
(3) For the purpose of determining whether or not any Bougainville law or matter or thing is reasonably justifiable in a democratic society that has a proper regard for the rights and dignity of mankind, a Court may have regard to –
(a) the provisions of this Constitution (especially Part 3 (Bougainville Objectives and Directive Principles)) and the National Constitution (especially the National Goals and Directives Principles and the Basic Social Obligations); and
(b) the Charter of the United Nations; and
(c) the Universal Declaration of Human Rights and any other declaration, recommendation or decision of the General Assembly of the United Nations concerning Human Rights and fundamental freedom; and
(d) the European Convention for the Protection of Human Rights and Fundamental Freedoms and Protocols thereto, and any other international conventions, agreements or declarations concerning human rights and fundamental freedoms; and
(e) judgements, reports and opinions of the International Court of Justice, the European Commission on Human Rights, the European Court of Human Rights and other international courts and tribunals dealing with human rights and fundamental freedoms; and
(f) previous laws, practices and judicial decisions and opinions in Bougainville and elsewhere in Papua New Guinea; and
(g) laws, practices and judicial decisions and opinions in other countries; and
(h) the materials referred to in Section 214(1) (use of certain materials as aids to interpretation); and
(i) declarations of the International Commission of Jurists and other similar organizations; and
(j) any other material that the Court considers relevant.
182. VALIDITY OF EMERGENCY LEGISLATION.
Division 3.
Enforcement of Guaranteed Rights and Freedoms.
183. ENFORCEMENT OF GUARANTEED RIGHTS AND FREEDOMS.
(2) For the purposes of this section –
(a) the Law Officers of Bougainville; and
(b) any other person prescribed for the purpose by a Bougainville law; and
(c) any other person with an interest (whether personal or not) in the maintenance of the principles commonly known as the Rule of Law such that, in the opinion of the Court concerned, they ought to be allowed to appear and be heard on the matter in question,
have an interest in the protection and enforcement of human rights, but this subsection does not limit the persons or classes of persons who have such an interest.
(3) A Court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purpose of this section and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force), in accordance with this subsection and the succeeding provisions of this section.
(4) Any court, tribunal or authority may, on its own initiative or at the request of a person referred to in Subsection (2), or otherwise, delay a decision in any proceedings before it in order to allow a question concerning the effect or application of this Part to be determined in accordance with Subsection (1).
(5) Relief under this section is not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, but may, if the Court thinks it proper to do so, be given in cases in which there is reasonable probability of infringement, or in which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement.
(6) The jurisdiction and powers of the Courts under this section are in addition to, and not in reduction of, their jurisdiction and powers under any other provision of this Constitution.
184. DAMAGES FOR BREACH OF RIGHTS.
(2) A person whose human rights are infringed is entitled to reasonable damages and, if the Court thinks it proper, exemplary damages in respect of the infringement.
(3) Subject to Subsections (4) and (5), damages may be awarded against a person who committed, or was responsible for, the infringement.
(4) Where the infringement was caused by a Bougainville governmental body, damages may be awarded –
(a) subject to Subsection (5), against a person referred to in Subsection (3); or
(b) against the governmental body to which any such person was responsible; or
(c) against both the person referred to in Subsection (3) and the governmental body to which such person was responsible, in which case the Court may apportion the damages between them.
(5) Damages shall not be awarded against a person who was responsible to a Bougainville governmental body in respect of the action giving rise to the infringement if the action taken by the person was genuinely believed by that person to be required by law, but the burden of proof of the belief is on the party alleging it.
185. HUMAN RIGHTS ENFORCEMENT BODY.
(a) protect and enforce human rights; and
(b) encourage respect for human rights; and
(c) educate persons and bodies on all matters pertaining to human rights; and
(d) encourage reconciliation among parties involved in abuses or infringement of human rights (including all parties involved in the Bougainville conflict).
(2) This Constitution or a Bougainville law made by an absolute majority vote shall make provision for the name of the body referred to in Subsection (1) and for the appointment of its members, its functions, powers, protections, staffing and all other matters relevant to its establishment and operation.
186. CUSTOMARY METHODS OF DEALING WITH HUMAN RIGHTS ABUSES.
PART 15. – ISSUES ARISING FROM THE BOUGAINVILLE CONFLICT.
187. ISSUES ARISING FROM THE BOUGAINVILLE CONFLICT.
(a) dealing with human rights issues and victims of human rights issues arising out of; and
(b) effecting reconciliation of parties involved in,
the Bougainville conflict, and to this end shall consult with the National Government.
(2) In so far as is possible, Bougainville customs and practices shall be utilized and employed in dealing with the human rights issues and in effecting the reconciliation referred to in Subsection (1).
(3) The provisions of the Bougainville Peace Agreement, as implemented in Section 344 (immunity from prosecution) of the National Constitution relating to immunity from prosecution in respect of certain offences arising from crisis-related activities in relation to the Bougainville conflict are set out in Schedule 6.1 (National Constitutional Provisions relating to Immunity from Prosecution) to this Constitution.
(4) The declaration in respect of immunity from prosecution in respect of certain offences arising from crisis-related activities in relation to the Bougainville conflict made by the Head of State, acting with, and in accordance with the advice of the National Executive Council under Section 344(3) (immunity from prosecution) of the National Constitution, dated 1 August 2002 and published in the National Gazette on 2nd August 2002 is as set in Schedule 6.2 (Declaration in respect of immunity, etc.,).
PART 16. – BOUGAINVILLE CONSTITUTIONAL OFFICE-HOLDERS AND BOUGAINVILLE CONSTITUTIONAL INSTITUTIONS.
Division 1.
General.
188. OTHER PROVISIONS RELATING TO BOUGAINVILLE CONSTITUTIONAL OFFICER-HOLDERS AND BOUGAINVILLE CONSTITUTIONAL INSTITUTIONS.
Division 2.
Bougainville Constitutional Office-holders.
189. BOUGAINVILLE CONSTITUTIONAL OFFICE-HOLDERS.
(a) the Chief Justice of Bougainville;
(b) a Bougainville Judge;
(c) the Bougainville Public Prosecutor;
(d) the Bougainville Public Solicitor;
(e) the Head of other Bougainville Courts;
(f) the Bougainville Ombudsman;
(g) the Bougainville Electoral Commissioner;
(h) a member of the Bougainville Public Services Commission;
(i) the Bougainville Auditor-General;
(j) the holder of any office declared by a Bougainville law to be a Bougainville Constitutional office for the purposes of this Part.
(2) A Bougainville Constitutional Office-holder (other than the Chief Justice of Bougainville, a Bougainville Judge or an Acting Judge who shall be appointed for terms provided for in Part 9 (Administration of Justice) shall, subject to Subsection (3), be appointed for a term of five years and is eligible for re-appointment, and, in accordance with a determination of the House of Representatives through legislation, may be appointed on a part-time basis.
(3) Subject to Part 9 (Administration of Justice), a person who has attained the age of 65 years shall not be appointed or re-appointed to a Bougainville Constitutional Office and a person shall not be appointed or re-appointed for a period that extends beyond the date on which he will attain the age of 65 years, but –
(a) the Bougainville Senior Appointments Committee may, in its deliberate judgement, in a particular case, extend the retiring age to, but not beyond, 70 years; and
(b) the term of appointment of a person whose appointment is extended under Subsection (2) varies accordingly.
(4) The total emoluments of a Bougainville Constitutional Office-holder shall not be reduced while he is in office, except –
(a) as part of a general reduction applicable equally or proportionally to all Bougainville Constitutional Office-holders; or
(b) as a result of taxation that does not discriminate against him as a Bougainville Constitutional Office-holder, or against Bougainville Constitutional Office-holders generally.
(5) The office of a Bougainville Constitutional Office-holder cannot be abolished while there is a substantive holder of the office, but this subsection does not apply to any additional Bougainville Constitutional office created by a Bougainville law.
(6) Provisions relating to –
(a) qualifications for and disqualification from office of a Bougainville Constitutional Office-holder; and
(b) conditions of employment general to all Bougainville Constitutional Office-holders; and
(c) resignation by a Bougainville Constitutional Office-holder; and
(d) rights on termination of employment of a Bougainville Constitutional Office-holder,
are as contained in Schedule 5 (matters relating to Bougainville Constitutional Office-holders) to this Constitution or in the provisions of this Constitution relating to individual Bougainville Constitutional Office-holders.
(7) Nothing in this section prevents the making by or under a Bougainville law of reasonable provision for the appointment of a person to act temporarily in the office of a Bougainville Constitutional Office-holder.
190. REMOVAL FROM OFFICE OF CERTAIN BOUGAINVILLE CONSTITUTIONAL OFFICE-HOLDERS.
(2) A Bougainville Constitutional Office-holder may be removed from office only –
(a) for inability (whether arising from physical or mental infirmity or otherwise) to perform the functions and duties of his office; or
(b) for misbehaviour; or
(c) in accordance with Part 13 (Leadership Code) for misconduct in office; or
(d) for a breach or contravention of a condition of employment laid down in this Constitution.
(3) Where the Bougainville Senior Appointments Committee is satisfied that the question of the removal from office of a Bougainville Constitutional Office-holder should be investigated, it shall –
(a) by written notice to the Chief Justice of Bougainville, request that he appoint a tribunal consisting of –
(i) a Bougainville Judge (who may be himself) and a member of another Bougainville Court established under Section 126 (establishment of other courts); or
(ii) if no other courts have been established under Section 126 (establishment of other Courts), by a Bougainville Judge (who may be himself),
to hear and determine the matter; and
(b) refer to the tribunal the matter of the removal from office of the Bougainville Constitutional Office-holder together with a written statement of the reasons for its opinion, for the tribunal to investigate and report back to it whether or not the Bougainville Constitutional Office-holder should be removed from office.
(4) The tribunal shall make due inquiry into the matter referred to it without being restricted by legal formalities or the rules of evidence and shall inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice.
(5) Where the tribunal reports that the Bougainville Constitutional Office-holder should be removed from office, the Bougainville Senior Appointments Committee shall –
(a) by notice in writing to the Bougainville Constitutional Office-holder concerned remove him from office; and
(b) send a copy of the notice under Paragraph (a) to the Speaker for presentation to the House of Representatives.
(6) Where a question has been referred to a tribunal under this section, the Bougainville Senior Appointments Committee –
(a) may suspend the Bougainville Constitutional Office-holder from office pending the report of the tribunal; and
(b) may remove the suspension at any time; and
(c) hall remove the suspension where the tribunal does not recommend dismissal from office,
and unless otherwise determined by the Bougainville Executive Council, the suspension shall be on full pay.
(7) Where, at the time of the suspension, a suspended Bougainville Constitutional Office-holder was dealing with any quasi-judicial proceedings he may continue and complete these proceedings unless the Bougainville Senior Appointments Committee orders otherwise.
Division 3.
Bougainville Constitutional Institutions.
191. BOUGAINVILLE CONSTITUTIONAL INSTITUTIONS.
(2) Subject to this Constitution –
(a) a Bougainville law shall provide, or shall make provision for, the powers and procedures of Bougainville Constitutional Institutions and generally for facilitating the performance of their functions, duties and responsibilities; and
(b) where no provision is made under Paragraph (a), a Bougainville Constitutional Institution –
(i) may provide, to the extent of the deficiency, for its own procedures; and
(ii) has all reasonable powers that are necessary or convenient for the exercise and performance of its powers, functions, duties and responsibilities.
Division 4.
Provision of Facilities, etc.
192. PROVISION OF FACILITIES, ETC.
PART 17. – BOUGAINVILLE REFERENDUM.
193. BOUGAINVILLE REFERENDUM.
194. PROCEDURE IN RELATION TO THE BOUGAINVILLE REFERENDUM.
(2) A decision of the House of Representatives, as provided for in Section 338(7) (Referendum to be held) of the National Constitution, that the Bougainville Referendum shall not be held, may be made only during the period commencing on the ninth anniversary of the establishment of the Autonomous Bougainville Government and ending on the fifteenth anniversary of that establishment, and only in accordance with the following procedure: –
(a) subject to Subsection (3), there must firstly be moved in the House of Representatives a motion that the House of Representatives consider whether the Bougainville Referendum shall not be held;
(b) the motion under Paragraph (a) must be passed by a three-quarters absolute majority vote;
(c) where the motion under Paragraph (a) is not passed by a three-quarters absolute majority vote no further procedure may be followed;
(d) where a motion under Paragraph (a) is passed by a three-quarters absolute majority vote, there shall be widespread consultation with the People of Bougainville;
(e) not less than three months after the motion under Paragraph (a) is passed by a three-quarters absolute majority vote and after –
(i) widespread consultation with the People of Bougainville as required by Paragraph (d); and
(ii) consultation between the Autonomous Bougainville Government and the National Government,
there shall be moved in the House of Representatives, subject to Subsection (3), a further motion that the Bougainville Referendum shall not be held;
(f) the motion under Paragraph (e) must be passed by a three-quarters absolute majority vote;
(g) where the motion under Paragraph (e) is passed by a three-quarters absolute majority vote, the President shall inform the National Executive Council and the Bougainville Referendum shall not be held;
(h) where the motion under Paragraph (e) is not passed by a three-quarters absolute majority vote no further procedure shall follow.
(3) A motion under Subsection (2)(a) or (e) –
(a) shall be formulated to avoid a disputed or unclear result; and
(b) shall not be moved in the House of Representatives unless written notice of the motion has been –
(i) delivered to the Speaker; and
(ii) reported by the Speaker to the members of the House of Representatives,
at least 14 sitting days of the House of Representatives prior to the moving of the motion.
(4) The failure of a motion under Subsection (2)(a) or (e) to obtain a three-quarters absolute majority vote prevents a further motion under Subsection (2)(a) or (e) from being moved.
(5) A Bougainville law, made by an absolute majority vote, may make provision for or in respect of any aspect of the procedure referred to in Subsection (2), particularly in respect of the manner of consultation with the People of Bougainville referred to in Subsection (2)(d) and (e).
(6) Where consultation is required under Subsection (2)(d), the consultation shall not be invalidated by reason of any failure of the People of Bougainville, or a large number of the People of Bougainville, to take part in the consultation process.
PART 18. – CONSULTATION AND PARTICIPATION.
195. CONSULTATION THROUGH PLEBISCITE.
(2) A plebiscite under Subsection (1) may be conducted only in a part or in parts of Bougainville where the subject of the plebiscite is relevant to that part or those parts only and where the restriction of the plebiscite to that part or to those parts shall not be divisive.
(3) The question as to whether or not the restriction of a plebiscite under this section referred to in Subsection (2) is divisive, is non - justiciable.
(4) An amendment to this Constitution, or a Bougainville law made by an absolute majority vote, may provide or make provision for all aspects of the conduct of plebiscites referred to in Subsection (1) including
(a) the class or classes of issues on which a plebiscite may be conducted; and
(b) the manner of determining the question to be posed in a plebiscite; and
(c) the promotion of public involvement in a plebiscite; and
(d) eligibility to vote in a plebiscite; and
(e) the manner and conduct of voting in and the manner of determining the result of a plebiscite; and
(f) the effect of the result of a plebiscite; and
(g) all other matters necessary or convenient to ensure the efficient conduct of a plebiscite.
196. PARTICIPATION IN, AND POLL FOR, LAW MAKING.
(a) to enable the People of Bougainville to initiate proposals for making laws; and
(b) to provide for consideration of the proposals by the relevant Departments of the Autonomous Bougainville Government and other relevant bodies; and
(c) to provide for determination by the People of Bougainville by poll as to whether the proposals become law.
(2) The procedures referred to in Subsection (1) shall make provision for
(a) the manner of initiating proposals for making laws and the number and qualifications of the People of Bougainville who may make such a proposal and who must support such a proposal, and the manner of signifying their support; and
(b) the subjects on which a law may be proposed; and
(c) the consultation to be carried out following the making of the proposal; and
(d) the manner of determining the wording of the proposed law; and
(e) the manner of conducting the poll; and
(f) the promotion of public involvement in the poll; and
(g) eligibility to vote in the poll; and
(h) the manner and conduct of voting and the manner of determining the result of the poll; and
(i) the effect of the results of the poll; and
(j) the formalities of enactment of a proposed law; and
(k) all other results necessary or convenient to ensure that the purposes of this section can be achieved.
PART 19. – EMERGENCY PROCEDURES AND POWERS.
197. DEFINITIONS.
“Bougainville emergency legislation” means Bougainville emergency legislation referred to in Section 204 (management and control of emergencies);
“declaration of a Bougainville emergency” means a declaration of a Bougainville emergency under Section 200 (declaration etc., of Bougainville emergency);
“declaration of a national emergency” means a declaration of a national emergency under Section 228 (declaration of national emergency) of the National Constitution;
“emergency” includes, without limiting the generality of the expression –
(a) imminent danger of war between Papua New Guinea and another country, or of warlike operations, threatening national security; and
(b) an earthquake, volcanic eruption, tempest, flood, fire or outbreak of pestilence or infectious disease, or any other natural calamity whether similar to any such occurrence or not or any man-made disaster such as oil-spill, industrial accident or air or shipping disaster, on such an extensive scale as to be likely to endanger the public safety or to deprive the community or any substantial proportion of the community of supplies or services essential to life; and
(c) action taken, or immediately threatened, by any person that is of such a nature, and on so extensive a scale, as to be likely to endanger the public safety or to deprive the community of supplies or services essential to life;
“period of declared Bougainville emergency” means any period during which a declaration of a Bougainville emergency under Section 200 (declaration etc., of Bougainville emergency) is in force;
“period of declared emergency” means any period during which a declaration of emergency referred to in Section 199 (declarations of emergency generally) is in force and includes –
(a) a period of declared Bougainville emergency; and
(b) a period of declared national emergency;
“period of declared national emergency” means any period during which a declaration of a national emergency is in force in Bougainville by virtue of Section 323 (declaration of national emergency in Bougainville) of the National Constitution and this Part.
198. GENERAL APPROACH TO CERTAIN EMERGENCIES.
199. DECLARATIONS OF EMERGENCY GENERALLY.
(a) in the case of an emergency of the kind described in Paragraph (b) of the definition of emergency in Section 197 (definitions), a declaration of a Bougainville emergency under Section 200 (declaration etc., of Bougainville emergency);
(b) a declaration of a national emergency under Section 228 (declaration, etc., of national emergency) of the National Constitution –
(i) to apply to Bougainville or part of Bougainville made at the request of the Autonomous Bougainville Government under Section 201 (declaration, etc., of national emergency at request of Autonomous Bougainville Government); or
(ii) in circumstances to which the provisions of Section 323(1)(d) (declaration of national emergency in Bougainville) of the National Constitution relate (being circumstances where, due to the urgency of the situation no consultation between the National Government and the Autonomous Bougainville Government has been possible or practical); or
(iii) in circumstances to which the provisions of Section 323(2) (declaration of national emergency in Bougainville) of the National Constitution relate (being circumstances where a national emergency is declared in respect of the whole of Papua New Guinea or in respect of Bougainville and substantial areas of Papua New Guinea other than Bougainville).
200. DECLARATION, ETC., OF BOUGAINVILLE EMERGENCY.
(a) shall be notified as widely and effectively as possible; and
(b) expires at the end of 21 days after it has been made but may be extended by the House of Representatives from time to time by an absolute majority vote for a period or periods each not exceeding two months; and
(c) may be revoked at any time by the Bougainville Executive Council or the House of Representatives.
201. DECLARATION, ETC., OF NATIONAL EMERGENCY AT REQUEST OF AUTONOMOUS BOUGAINVILLE GOVERNMENT.
(a) if the House of Representatives is sitting – by a resolution of the House passed by a simple majority vote; or
(b) if the House is not sitting – by the Bougainville Executive Council,
and a request for the declaration to be revoked may be made to the National Executive Council at any time by –
(c) the House of Representatives – by resolution of the House passed by a simple majority vote; or
(d) the Bougainville Executive Council.
202. REQUEST FOR REVOCATION OF DECLARATION, ETC., WHERE NATIONAL EMERGENCY DECLARED OTHER THAN AT THE REQUEST OF THE AUTONOMOUS BOUGAINVILLE GOVERNMENT.
(a) the House of Representatives – by resolution of the House passed by a simple majority vote; or
(b) the Bougainville Executive Council.
(2) Where a declaration of national emergency has been made in circumstances to which the provisions of Section 323(2) (declaration of national emergency in Bougainville) of the National Constitution relate, a request for the declaration to be revoked, or to be revoked in respect of Bougainville, may be made to the National Executive Council at any time by
(a) the House of Representatives – by resolution of the House passed by a simple majority vote; or
(b) the Bougainville Executive Council.
203. HOUSE OF REPRESENTATIVES CONTROL.
(a) it shall be called to meet as soon as practicable, and in any event not later than 10 days, after the declaration; and
(b) thereafter –
(i) during a period of declared Bougainville emergency or period of declared national emergency to which Section Section 199(b)(i) (declarations of emergency generally) relates, shall meet at intervals each not exceeding two months; and
(ii) during a period of declared national emergency other than that referred to in Subparagraph (i), shall meet as often as the House of Representatives requires.
(2) At each meeting of the House of Representatives during a period of declared emergency the President shall present to the House of Representatives a statement setting out –
(a) a report on the current position with regard to the circumstances giving rise to the declaration and on the conduct of the emergency; and
(b) the reasons for the declaration of the emergency or for the continuance of it; and
(c) a report on the operation of any Bougainville emergency legislation (where the declaration is of a Bougainville emergency); and
(d) a report on the operation of any national emergency legislation (where the declaration is of a national emergency).
204. MANAGEMENT AND CONTROL OF EMERGENCIES.
(a) during a period of declared Bougainville emergency, Bougainville emergency legislation with power to regulate or restrict human rights to the extent reasonably necessary to deal with the emergency concerned and with matters arising out of it, but only so far as is reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind; and
(b) a system of emergency committees, comprising members of the House of Representatives, to monitor on behalf of and report to the House of Representatives on the management of the emergency and the need for and operation of the emergency legislation; and
(c) such other matters relating to the emergency as are required, including arrangements for co-operation with the National Government in the management of the emergency.
(2) In principle, the provisions of the Bougainville law referred to in Subsection (1) shall correspond with the provisions of Part X (emergency powers) of the National Constitution with such adaptation as is appropriate.
PART 20. – INTERGOVERNMENTAL RELATIONS AND REVIEW.
205. PRINCIPLES OF INTERGOVERNMENTAL RELATIONS, ETC.
(a) that the autonomy arrangements, having been reached through consultation and co-operation, should be implemented in a like manner;
(b) that there be a procedure to avoid, minimize and resolve disputes;
(c) that the National Government has no power to withdraw powers from the Autonomous Bougainville Government or to suspend it,
being the principles set out in the Bougainville Peace Agreement as implemented in Section 331 (principles of intergovernmental relations) of the National Constitution.
(2) The provisions of Division XIV.6 (intergovernmental relations and review) of the National Constitution are as set out in Schedule 8 (National Constitution provisions relating to Intergovernmental Relations and Review) to this Constitution.
(3) The Bougainville Executive Council shall appoint not less than two persons to be members of the Joint Supervisory Body established under the Bougainville Peace Agreement as implemented in Section 332 (Joint Supervisory Body) of the National Constitution.
PART 21. – THIS CONSTITUTION.
206. SUPREMACY OF THE CONSTITUTION.
(2) Subject to Subsection (1), this Constitution is the Supreme Law of Bougainville and subject to Section 213 (construction of Bougainville laws), all Bougainville laws and all acts (whether legislative, executive or judicial) that are inconsistent with it are, to the extent of the inconsistency, invalid and ineffective.
(3) The provisions of this Constitution are self-executing as far as their respective natures and subject matters allow.
207. ALTERATION OF THIS CONSTITUTION.
208. EVOLUTION OF THIS CONSTITUTION AND OF THE AUTONOMOUS BOUGAINVILLE GOVERNMENT.
209. INTERPRETATIVE JURISDICTION.
(a) Bougainville High Court; or
(b) Supreme Court,
have original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of this Constitution.
(2) Subject to this Constitution, where any question relating to the interpretation or application of a provision of this Constitution arises in any court other than the Bougainville High Court or the Supreme Court, the court or tribunal shall, unless the matter is trivial, vexatious or irrelevant, refer the matter to the Bougainville High Court or to the Supreme Court and take whatever other action (including adjournment of proceedings) is appropriate.
210. SPECIAL REFERENCES TO BOUGAINVILLE HIGH COURT.
(2) The opinion given under Subsection (1) has the same binding effect as any other decision of the Bougainville High Court.
(3) The following authorities only are entitled to make application under Subsection (1): –
(a) the House of Representatives;
(b) the President;
(c) the Bougainville Executive Council;
(d) the Bougainville Ombudsman;
(e) any of the Law Officers of Bougainville;
(f) the Speaker;
(g) the Bougainville Law Reform Commission.
(4) Subject to any Bougainville law, the Rules of Court of the Bougainville High Court may make provision in respect of matters relating to the jurisdiction of the Bougainville High Court under this section, and in particular as to –
(a) the form and content of questions to be decided by the Bougainville High Court; and
(b) the provision of counsel adequate to enable full argument before the Bougainville High Court of any question; and
(c) cases and circumstances in which the Bougainville High Court may decline to give an opinion.
(5) In this section, “proposed Bougainville law” means a proposed Bougainville law that has been formally placed before the House of Representatives.
211. SPECIAL STATUS OF THE PREAMBLE.
(a) the other provisions of this Constitution and all other Bougainville laws shall be read and applied in the light of the Preamble and so as to give effect to it; and
(b) in particular, it is the will of the people of Bougainville, expressed through the Bougainville Constituent Assembly, that in the interpretation and application of this Constitution and all other Bougainville laws, the courts shall give full weight to the provisions of the Preamble.
(2) The provisions of the Preamble are non-justiciable.
(3) Notwithstanding Subsection (2), it is the duty of the Autonomous Bougainville Government and of all Bougainville Government Services and officers thereof, as far as within their respective capacities and resources, and all other Bougainville governmental bodies, to apply and give effect to the Preamble as far as is within their respective powers.
212. CONSTRUCTION OF THE CONSTITUTION GENERALLY.
(2) The Schedules to this Constitution form part of the Constitution.
213. CONSTRUCTION OF BOUGAINVILLE LAWS.
(a) this Constitution shall be read and construed subject to the National Constitutional Laws; and
(b) the Bougainville laws shall be made under this Constitution and shall be read and construed subject to this Constitution, and where a Bougainville law exceeds the authority of this Constitution
(i) to the extent that it exceeds the authority of this Constitution – it is invalid; and
(ii) to the extent that it does not exceed the authority of this Constitution – it is valid.
214. USE OF CERTAIN MATERIALS AS AIDS TO INTERPRETATION.
(a) the Bougainville Peace Agreement;
(b) the draft Constitution prepared by the Bougainville Constitutional Commission and the Report of the Bougainville Constitutional Commission;
(c) the official record of debates and of votes and of proceedings in the Bougainville Constituent Assembly;
(d) any other papers used or tabled for the purpose of, or in connection with, those debates.
(2) A Bougainville law –
(a) shall identify the papers referred to in Subsection (1)(d); and
(b) may make provision for the manner of proof of the documents and papers referred to in Subsection (1).
215. ENFORCEMENT OF THIS CONSTITUTION.
(2) A Bougainville law may make provision for the enforcement of any provision of this Constitution, and for establishing procedures and penalties for its enforcement.
(3) The Bougainville High Court may, if it thinks it proper to do so, make any order it thinks proper for preventing or remedying a breach of any prohibition, restriction or duty imposed by this Constitution.
216. ACCESSIBILITY OF THE CONSTITUTION.
(a) arrange for translation of this Constitution into Tok Pisin and as many tok ples as possible; and
(b) prepare and circulate widely, explanatory material about the Constitution in English, Tok Pisin and as many tok ples as possible.
PART 22. – ALTERATION OF THIS CONSTITUTION AND OF PART XIV(BOUGAINVILLE GOVERNMENT AND BOUGAINVILLE REFERENDUM) OF THE NATIONAL CONSTITUTION, ETC.
Division 1.
Amendment of Part XIV (Bougainville Government and Bougainville Referendum) of the National Constitution, etc.
217. REQUIREMENTS FOR AMENDMENT OF PART XIV (BOUGAINVILLE GOVERNMENT AND BOUGAINVILLE REFERENDUM) OF THE NATIONAL CONSTITUTION, ETC.
(a) Part XIV (Bougainville Government and Bougainville Referendum) of the National Constitution; and/or
(b) The Organic Law on Peace-Building in Bougainville-Autonomous Bougainville Government and Bougainville Referendum.
(2) The requirements for amendment of a relevant National Constitutional Law are as provided by Section 345 (requirement for amendment of this Part, etc.,), of the National Constitution and the provisions of this section relating to procedures in Bougainville in respect of such amendment are to give effect to and are not in reduction of the provisions of Section 345 (requirement for amendment of this Part, etc.,) of the National Constitution.
(3) A Bougainville law, which shall be made within one year of the first meeting of the House of Representatives, shall make provision for all matters relating to the consultation required by Subsections (4) and (5) of this section and Section 218(1)(a) (National Constitutional Regulations).
(4) Subject to Subsection (6), where the Autonomous Bougainville Government proposes to seek to present or have presented an amendment to a relevant National Constitutional Law, it shall, before complying with Section 345(2) (requirement for amendment of this Part, etc.,) of the National Constitution, consult, in accordance with a Bougainville law, with –
(a) heads of levels of formal government below the level of the Autonomous Bougainville Government; and
(b) representatives of the traditional chiefs and other traditional leaders at district level; and
(c) representatives of Churches in Bougainville.
(5) Subject to Subsection (6), where the Autonomous Bougainville Government becomes aware, through consultation or review under Section 345(2) (requirement for amendment of this Part, etc.,) of the National Constitution, of an amendment proposed by the National Government to a relevant National Constitutional Law, it shall, before finalizing consultation on the matter with the National Government –
(a) table the proposed amendment in the House of Representatives; and
(b) provide adequate opportunities for consultation with and consult with –
(i) heads of levels of formal government below the level of the Autonomous Bougainville Government; and
(ii) representatives of the traditional chiefs and other traditional leaders at district level; and
(iii) representatives of Churches in Bougainville.
(6) Where –
(a) the National Government notifies the Autonomous Bougainville Government that the National Government considers that a proposed amendment of a relevant National Constitutional Law is non-controversial; or
(b) the Autonomous Bougainville Government considers that a proposed amendment of a relevant National Constitutional Law is non-controversial,
the Autonomous Bougainville Government shall refer the matter to the House of Representatives, and the House of Representatives may, by an absolute majority vote, decide that the consultation referred to in Subsections (4) and (5) is not required.
(7) The question, whether or not a matter referred to in Subsection (6), is non-controversial, is non-justiciable.
(8) Before the second vote in the National Parliament in accordance with Section 14 (making of alterations to the Constitution and Organic Laws) of the National Constitution on an amendment proposed by the Autonomous Bougainville Government or by the National Government to a relevant National Constitutional Law, a motion shall be moved in the House of Representatives in favour of the amendment presented to the National Parliament.
(9) In order for the second vote in the National Parliament to proceed (and, if the vote achieves the majority required, for the amendment to become law), the motion in the House of Representatives referred to in Subsection (5) must be passed –
(a) where the amendment presented to the National Parliament is to Division XIV.7 (Bougainville Referendum) – by a two-thirds absolute majority vote; and
(b) where the amendment presented to the National Parliament is to any other Division of Part XIV (Bougainville Government and Bougainville Referendum) or to an Organic Law made under Part XIV – by a simple majority vote.
(10) The person presiding over the House of Representatives on the occasion of a vote taken under Subsection (9)(a) or (b) shall, as soon as practicable after the vote has been taken, send to the Speaker of the National Parliament, details of the result of the vote.
(11) The failure of any party, with whom the Autonomous Bougainville Government is required to consult under Subsection (4)(a), (b) or (c) or (5)(b), to take part in the consultation process, does not invalidate the consultation process.
218. NATIONAL CONSTITUTIONAL REGULATIONS.
(a) consult, within a reasonable time, in accordance with a Bougainville law, with –
(i) the House of Representatives; and
(ii) heads of levels of formal government below the level of the Autonomous Bougainville Government; and
(iii) representatives of the traditional chiefs and other traditional leaders at district level; and
(iv) representatives of Churches in Bougainville; and
(b) thereafter move a motion in the Bougainville Executive Council that approval of the proposal be given.
(2) Where the motion referred to in Subsection (1)(b) is passed by a simple majority vote, approval shall be given to the National Government.
(3) The House of Representatives may, by an absolute majority vote, decide that the consultation referred to in Subsection (1)(a) is not required in respect of a matter, considered by it in its absolute discretion, to be non-controversial.
(4) The question, whether or not a matter referred to in Subsection (3), is non-controversial, is non-justiciable.
(5) The failure of any party, with whom the Autonomous Bougainville Government is required to consult under Subsection (1)(a), to take part in the consultation process, does not invalidate the consultation process.
Division 2.
Alterations to this Constitution.
219. MAKING OF ALTERATIONS TO THIS CONSTITUTION.
(2) A proposed law to alter this Constitution must be supported, on at least two occasions after opportunity for debate on the merits, on a division in accordance with Standing Orders of the House of Representatives by the majority of votes as follows: –
(a) an alteration to Section 194 (procedure in relation to the Bougainville Referendum) – a three-quarters absolute majority vote;
(b) an alteration to this section – a three-quarters absolute majority vote;
(c) an alteration to any other provision of this Constitution – a two-thirds absolute majority vote.
(3) Where any amendment to this Constitution is proposed, the Bougainville Executive Council shall, in accordance with the Bougainville Peace Agreement as implemented in Section 287 (amendment of Bougainville Constitution) of the National Constitution –
(a) give notification of it to the National Minister responsible for Bougainville Affairs; and
(b) where so requested by the National Government, consult with the National Government in relation to the proposed amendment.
(4) Before the House of Representatives votes for the first time on a proposed law to amend this Constitution, the House of Representatives shall consult, in accordance with a Bougainville law, with –
(a) heads of levels of formal government below the level of the Autonomous Bougainville Government; and
(b) representatives of the traditional chiefs and other traditional leaders at district level; and
(c) representatives of Churches in Bougainville.
(5) The opportunities for debate referred to in Subsection (2) must have been –
(a) during different meetings of the House of Representatives; and
(b) separated in time by at least two months,
and the proposed law must be circulated, in accordance with Standing Orders of the House of Representatives, to all members of the House of Representatives before it is formally introduced into the House of Representatives.
(6) In his certificate under Section 66 (certification as to making of laws), the Speaker shall, in the case of a law made to alter this Constitution –
(a) certify that the requirements of Subsections (4) and (5) were complied with; and
(b) state –
(i) the date on which each vote was taken; and
(ii) in relation to each vote, the number of seats in the House of Representatives at the time and the respective numbers of members of the House of Representatives voting for and against the proposal,
and the certificate is, in the absence of proof to the contrary, conclusive evidence of the matters so stated.
(7) Unless the House of Representatives decides otherwise in a particular case, Subsection (2) does not apply where the Speaker, after consultation with the Chief Justice of Bougainville or the most senior Bougainville Judge available, certifies that the proposed law –
(a) does not affect the substance of the provision to be altered by it; or
(b) is designed to correct a self-evident error or omission; or
(c) is merely incidental to or consequential on some other alteration of –
(i) this Constitution; or
(ii) Part XIV (Bougainville Government and Bougainville Referendum) of the National Constitution; or
(iii) The Organic Law on Peace-Building in Bougainville-Autonomous Bougainville Government and Bougainville Referendum,
and such a proposed law may be made in the same way as Bougainville laws.
(8) The Bougainville High Court may, on the application of any person made within four weeks after the date of a certificate under Subsection (7) or such further time as a Bougainville Judge, on application made within that period, considers reasonable in the particular circumstances, disallow the certificate, but otherwise the certificate is conclusive.
PART 23. – REVIEW OF THIS CONSTITUTION, ETC.
220. REVIEW OF THIS CONSTITUTION, ETC.
(a) immediately preceding a review held under Section 337(1)(a) (reviews) of the National Constitution; and
(b) at such other times as the House of Representatives may direct.
(2) A review of the provisions and working of this Constitution may make recommendations as to amendment of this Constitution or of Bougainville laws or of administrative practices.
(3) A Bougainville law made by an absolute majority vote shall make provision for the manner in which a review of the provisions and working of this Constitution shall be conducted, for the appointment of a person or body to undertake the review and for all matters relevant to the conduct of the review.
(4) A report on the findings of each review shall be sent by the person or body responsible for conducting the review to the Speaker for presentation to the House of Representatives.
(5) A Bougainville law may make provision for a Bougainville Law Reform Commission and for its composition, functions, powers and operation.
PART 24. – MISCELLANEOUS.
221. LEGAL CAPACITY OF AUTONOMOUS BOUGAINVILLE GOVERNMENT.
(2) The Autonomous Bougainville Government may sue and be sued in accordance with a Bougainville law.
222. BOUGAINVILLE CONSTITUTIONAL REGULATIONS.
(2) A Bougainville Constitutional Regulation shall be tabled in the House of Representatives as soon as practicable after being made, and may be disallowed by the House of Representatives at any time.
(3) Where any Bougainville Constitutional Regulation is proposed, the Bougainville Executive Council shall –
(a) give notification of it to the National Minister responsible for Bougainville Affairs; and
(b) where so requested by the National Government, consult with the National Government in relation to the proposed Bougainville Constitutional Regulation.
223. PUBLIC PURPOSES.
(2) A Bougainville law may declare that a purpose is a public purpose for the purposes of
(a) Section 53 (protection of unjust deprivation of property) of the National Constitution; or
(b) any Bougainville law that requires such a declaration.
224. TRANSITIONAL PROVISIONS CONTAINED IN ORGANIC LAW.
(a) transfer of assets, etc.,; and
(b) former Provincial laws; and
(c) saving of contracts, etc.,; and
(d) registration of title of land; and
(e) pending legal proceedings,
are as contained in Part 6 (additional transitional provisions) of the Organic Law on Peace-Building in Bougainville - Autonomous Bougainville Government and Bougainville Referendum, which Part is set out in Schedule 9 (Transitional provisions – Part VI of Organic Law on Peace-Building in Bougainville – Bougainville Government and Bougainville Referendum) to this Constitution.
225. APPLICATION OF OTHER LAWS.
(a) National Constitutional Law; or
(b) Act of the National Parliament,
contains a reference, express or implied, to –
(c) the North Solomons Province or Bougainville Province – that reference shall, unless the context otherwise requires, be read as a reference to the Autonomous Region of Bougainville or Bougainville; and
(d) the North Solomons Provincial Government, the Bougainville Transitional Government or the Bougainville Interim Provincial Government – that reference shall, unless the context otherwise requires, be read as a reference to the Autonomous Bougainville Government.
226. BOUGAINVILLE GAZETTE.
(2) A Bougainville law shall make provision for all matters relating to the Bougainville Gazette.
PART 25. – FIRST BOUGAINVILLE GENERAL ELECTION AND FIRST MEETING OF HOUSE OF REPRESENTATIVES.
Division 1.
General.
227. EFFECT OF THIS PART.
228. PURPOSES OF THIS PART.
(a) to enable elections to be conducted to elect the first President of the Autonomous Region of Bougainville and the members of the first House of Representatives; and
(b) to effect the establishment of the Autonomous Bougainville Government.
229. INTERPRETATION.
“first Bougainville general election” means the first election of the President of the Autonomous Region of Bougainville and of the members of the House of Representatives.
Division 2.
Powers and Duties of Bougainville Interim Provincial Government in consultation with Bougainville People’s Congress.
230. EXISTING FACILITIES AND PERSONNEL TO BE USED WHERE PRACTICABLE.
231. BOUGAINVILLE INTERIM PROVINCIAL GOVERNMENT IN CONSULTATION WITH THE BOUGAINVILLE PEOPLE’S CONGRESS MAY ISSUE DIRECTIONS, ETC., IN CERTAIN CIRCUMSTANCES.
Division 3.
Arrangements for First Bougainville General Election.
232. INTERIM BOUGAINVILLE GAZETTE.
233. FIRST BOUGAINVILLE GENERAL ELECTION BOUNDARIES DIRECTOR.
(2) The Bougainville Interim Provincial Government, in consultation with the Bougainville People’s Congress, may reject a recommendation under Subsection (1) and require a further recommendation, but shall not appoint a person who has not been recommended by the Bougainville Provincial Administrator.
(3) The function of the First Bougainville General Election Boundaries Director is to recommend to the Bougainville Interim Provincial Government, in consultation with the Bougainville People’s Congress, within three months of the date of his appointment, the boundaries of the 33 single member constituencies in Bougainville for the purposes of Section 55(2)(b)(i) (establishment and composition of the House of Representatives) allocated in accordance with Section 105(1) (constituencies), for the purposes of the first Bougainville general election.
(4) In carrying out his function under Subsection (3), the First Bougainville General Election Boundaries Director shall take into consideration the matters referred to in Section 105(5) (constituencies).
(5) The First Bougainville General Election Boundaries Director –
(a) shall be appointed for such period as is sufficient to enable him to carry out his functions under Subsection (3); and
(b) is not subject to direction or control by any person or authority.
(6) The boundaries of the constituencies shall be determined by the Bougainville Interim Provincial Government, in consultation with the Bougainville People’s Congress, in accordance with this section.
(7) The Bougainville Interim Provincial Government, in consultation with the Bougainville People’s Congress, may accept or reject, but may not amend, any recommendations from the First Bougainville General Election Boundaries Director, but may not reject a set of recommendations, which, following previous rejection, has been modified by the First Bougainville General Election Boundaries Director.
234. CONSTITUENCIES FOR FIRST BOUGAINVILLE GENERAL ELECTION.
(a) for the election of the President, all the single member constituencies whose boundaries are determined under Section 233 (First Bougainville General Election Boundaries Director) taken together to form one constituency; and
(b) for the election of the 33 members representing single member constituencies, the constituencies whose boundaries are determined under Section 233 (First Bougainville General Election Boundaries Director); and
(c) for the election of a woman member and of a former combatant member for each Region (North, Central and South), the constituencies whose boundaries formed the boundaries of the open electorates for the 2002 general election to the National Parliament.
235. FIRST BOUGAINVILLE GENERAL ELECTION MANAGER.
(2) The Bougainville Interim Provincial Government, in consultation with the Bougainville People’s Congress, may reject a recommendation under Subsection (1) and require a further recommendation, but shall not appoint a person who has not been recommended by the Bougainville Provincial Administrator.
(3) The functions of the First Bougainville General Election Manager are to make all preparations for and conduct, in accordance with this Part, the first Bougainville general election.
(4) The First Bougainville General Election Manager, may, for the purposes of the first Bougainville general election, issue guidelines in relation to matters specified in Section 7(3) (Bougainvillean), and the electoral provisions set out in Schedule 10 (electoral provisions relating to the first general election of the President and of members of the House of Representatives) may make further provision for such guidelines.
(5) The First Bougainville General Election Manager –
(a) shall be appointed for such period as is sufficient to enable him to carry out his functions under Subsection (3); and
(b) is not subject to direction or control by any person or authority.
236. FIRST BOUGAINVILLE GENERAL ELECTION.
(2) The Bougainville Interim Provincial Government, in consultation with the Bougainville People’s Congress, may, after consultation with the First Bougainville General Election Manager, where it considers that arrangements are not sufficiently in place to enable the first Bougainville general election to be held within the period specified in Subsection (1), defer the first Bougainville general election for a period or periods each not exceeding two months but such deferments shall not in total exceed six months.
(3) The Bougainville Interim Provincial Government, in consultation with the Bougainville People’s Congress, acting with, and in accordance with, the advice of the first Bougainville General Election Manager, shall fix the first and last days of the period during which voting shall take place at the first Bougainville general election, and the date by which the writs for the election shall be returned, and shall issue writs accordingly.
(4) Subject to this section, the election shall be conducted under the electoral provisions set out in Schedule 10 (electoral provisions relating to first general election of President and of members of the House of Representatives) to this Constitution so as to have –
(a) the President of the Autonomous Region of Bougainville elected in accordance with Section 89 (election of President); and
(b) the other members of the House of Representatives elected in accordance with Section 55 (establishment and composition of the House of Representatives).
(5) In the event that the electoral provisions set out in Schedule 10 (electoral provisions relating to first general election of President and of members of the House of Representatives) to this Constitution do not make provision, or do not make adequate provision, for any matter relative to the preparation for and conduct of the first general election and matters arising therefrom, the First Bougainville General Election Manager may apply relevant provisions of either or both of the following: –
(a) the Electoral Act of the North Solomons Provincial Government;
(b) the National Organic Law on National and Local-level Government Elections,
with such adaptations as are appropriate in the circumstances.
(6) In respect that Schedule 10 (electoral provisions relating to first general election of President and of members of the House of Representatives) to this Constitution applies only to the first general election, it shall on the completion of all matters for which it makes provision, be deemed to be repealed.
(7) In respect that Schedule 10 (electoral provisions relating to first general election of President and of members of the House of Representatives) to this Constitution applies only to the first Bougainville general election, and in accordance with Subsection (6) shall be deemed to be repealed on completion of all the matters for which it makes provision, it may for convenience –
(a) be omitted from copies (other than the certified copies) of this Constitution; and
(b) be printed and issued separately,
but for the avoidance of doubt it is confirmed that Schedule 10 (electoral provisions relating to first general election of President and of members of the House of Representatives) forms part of this Constitution until such deemed repeal.
237. INTERIM REGISTRATION OF POLITICAL PARTIES.
(2) The Bougainville Interim Provincial Government, in consultation with the Bougainville People’s Congress, may reject a recommendation under Subsection (1) and require a further recommendation, but shall not appoint a person who has not been recommended by the Bougainville Provincial Administrator.
(3) For the purposes of the interim registration of political parties for the first Bougainville general election, the Bougainville Interim Provincial Government, in consultation with the Bougainville People’s Congress, shall make and publish a determination as to what constitutes, in relation to a political party –
(a) a reasonable number of members in all regions of Bougainville; and
(b) policies on broad subject matters of relevance to Bougainville; and
(c) organizational structures that meet basic standards of democracy,
and where the Bougainville Political Party Monitor is of the opinion that the membership, policies and organizational structures of a political party are in accordance with the determination, he shall effect interim registration of the political party.
(4) Where the Bougainville Political Party Monitor effects the interim registration under Subsection (3), of a political party, he shall –
(a) notify –
(i) the political party concerned; and
(ii) the First Bougainville General Election Manager; and
(b) cause notification of the interim registration of the political party to be published in the Interim Bougainville Gazette; and
(c) otherwise give notification to the public of the interim registration of the political party in such manner as he considers both practicable and effective.
(5) A political party cannot take part in the first election of President or the first election of members to the House of Representatives unless it has been registered under this section.
(6) For the purpose of Subsections (5) and (8), “take part in” means, without limiting the generality of the expression –
(a) advertise or proclaim in any way that a candidate for election –
(i) supports its policies; or
(ii) is nominated or supported or funded by it; or
(b) take any action likely to indicate to voters that it supports any candidate.
(7) A candidate for election as first President or to the first House of Representatives shall not –
(a) accept funds from any political party; or
(b) hold himself out as supporting or supported by a political party; or
(c) hold himself out as a candidate supported by a political party,
unless the political party is registered under this section.
(8) For the purposes of this section, “political party” means any party or organization having political aims and desiring to take part in an election.
(9) Nothing in this section is intended to reduce any right conferred by Section 50 (right to vote and stand for public office) of the National Constitution, but it is the considered opinion of the People of Bougainville, expressed through the Bougainville Constitutional Commission and the Bougainville Constituent Assembly, that any restrictions imposed by this section are reasonable and are reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.
238. DISPUTED ELECTIONS AND RETURNS ARISING FROM FIRST BOUGAINVILLE GENERAL ELECTIONS.
(2) Disputed elections and returns referred to in Subsection (1) shall be determined in accordance with Part 18 of the electoral provisions set out in Schedule 10 (electoral provisions relating to first general election of President and of members of the House of Representatives).
Division 4.
Arrangements for the First Meeting of the House of Representatives.
239. CALLING OF FIRST MEETING OF THE HOUSE OF REPRESENTATIVES.
(2) The date referred to in Subsection (1) shall be within seven days of the date fixed under Section 236(3) (first Bougainville general election) for the return of the writs.
(3) The Bougainville Interim Provincial Government in consultation with the Bougainville People’s Congress, shall give public notification of the time, date and place fixed under Subsection (1) in the manner it considers to be most effective.
240. EXECUTIVE OFFICER OF THE HOUSE OF REPRESENTATIVES.
(2) The Bougainville Interim Provincial Government in consultation with the Bougainville People’s Congress, may reject a recommendation under Subsection (1) and require a further recommendation, but shall not appoint a person who has not been recommended by the Bougainville Provincial Administrator.
(3) The functions of the Executive Officer are –
(a) to make arrangements for the first meeting of the first House of Representatives; and
(b) to compile Interim Standing Orders to provide for –
(i) the swearing in of the President and members; and
(ii) the appointment of Regional Committees; and
(iii) the nomination and election of Speaker and Deputy Speaker; and
(iv) the appointment of members of Bougainville Executive Council; and
(v) the adoption of Standing Orders; and
(vi) such other matters as may be relevant; and
(c) to take the Chair pending the appointment and swearing in of the Speaker; and
(d) to act as Clerk of House of Representatives until the appointment of the Clerk under Section 78 (Clerk and officers of the House of Representatives).
PART 26. – OTHER INTERIM ARRANGEMENTS.
241. INTERIM ARRANGEMENTS IN RELATION TO INSTITUTIONS, OFFICES, ETC.
(a) Bougainville Constitutional Institutions; and
(b) Bougainville Constitutional Office-holders; and
(c) Bougainville High Court and other Bougainville courts; and
(d) Bougainville Judges; and
(e) Bougainville Government Services and officers thereof,
for which or whom provision is made in the preceding Parts of this Constitution, shall, until such time as the Bougainville Constitutional Institutions, Bougainville High Court and other Bougainville courts and the Bougainville State Services are established and the Bougainville Constitutional Office-holders, Bougainville Judges and officers are appointed in accordance with this Constitution, in accordance with the Bougainville Peace Agreement as implemented in Part XIV (Bougainville Government and Bougainville Referendum) of the National Constitution, be carried out by the equivalent institutions, Constitutional Office-holders, Courts, Judges, State Services and officers of the National Government, to the extent that their functions, powers and duties permit.
(2) Until such time as the Bougainville High Court is established and Bougainville Judges are appointed under this Constitution, a Judge of the National Court may be appointed as a Bougainville Judge under Section 309(4) (appointment of Judges, etc.,) of the National Constitution to carry out such functions of a Bougainville Judge as are required by this Constitution.
SCHEDULE 1 – .
Section 6
DECLARATION OF LOYALTY TO BOUGAINVILLE, ITS PEOPLES AND CONSTITUTION.
|
I,
_____________________________ realizing fully the responsibilities to which I am
committing myself and the consequences of not
living up to this Declaration and
those responsibilities, freely and willingly declare my loyalty to Bougainville
and its People
and to the Constitution of the Autonomous Region of Bougainville
adopted by the Bougainville Constituent Assembly (made under the
authority of
the Bougainville Peace Agreement as implemented in Part XIV (Bougainville
Government and Bougainville Referendum) of
the National Constitution) as altered
from time to time in accordance with its provisions, and I promise that I will
uphold the Constitution
of the Autonomous Region of Bougainville and the laws
which apply in Bougainville.
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SCHEDULE 2 – .
Section 212(1)
RULES FOR SHORTENING AND INTERPRETATION OF THIS CONSTITUTION.
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PART
1 – INTRODUCTORY.
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SCH.
2.1. APPLICATION OF SCHEDULE 1.
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(1) The rules contained in this Schedule apply, unless the contrary intention appears, in the interpretation of this Constitution. |
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(2)
The rules contained in this Schedule do not apply to any other law, unless they
are adopted by law so to apply.
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Part 2-General
SCH. 2.2.MEANING OF CERTAIN EXPRESSIONS. |
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(1)
In this Constitution –
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“absolute
majority vote”, in relation to proceedings in the House of Representatives
means –
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(a) if
qualified by reference to a certain fraction or percentage, affirmative votes
equal to not less than that fraction or percentage
of the total number of seats
in the House of Representatives; or
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(b) if
not so qualified, affirmative votes equal to more than one half of the total
number of those seats;
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“act”
includes omission or failure to act;
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“Advisory
Body” means the Advisory Body established under Section 52 (Advisory
Body);
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“alter”
in relation to any provision of this Constitution or any other law, includes
repeal (with or without re-enactment
or the making of other provision), amend,
modify, suspend (or remove a suspension) or add to the words or effect of the
provision;
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“Autonomous
Bougainville Government” means the Autonomous Bougainville Government
established by this Constitution;
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“Autonomous
Region of Bougainville” has the meaning given to it in Section 1
(Autonomous Region of Bougainville);
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“Bougainvillean”
means a Bougainvillean as provided for in Section 7 (Bougainvillean) (including
in the Bougainville law
under Section 7(2) and (4));
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“Bougainville
Auditor-General” means the Bougainville Auditor-General appointed under
Section 158 (Bougainville Auditor-General);
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“Bougainville
conflict” means the crisis and conflict occurring in Bougainville (by
whatever name known) between 1 October
1988 and 30 August 2001;
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“Bougainville
Constituent Assembly” means the Bougainville Constituent Assembly
established in accordance with Section
284 (Bougainville Constituent Assembly)
of the National Constitution in accordance with the Bougainville Peace
Agreement;
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“Bougainville
Constitutional Commission” means the Bougainville Constitutional
Commission established in accordance with
Section 281 (Bougainville
Constitutional Commission) of the National Constitution in accordance with the
Bougainville Peace Agreement;
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“Bougainville
Constitutional Office-holder” means a Bougainville Constitutional
Office-holder under Section 189 (Bougainville
Constitutional
Office-holders);
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“Bougainville
Correctional Service” means the Bougainville Correctional Service
established by Section 138(1)(c) (establishment
of Bougainville
Services);
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“Bougainville
Courts” means the Bougainville Courts referred to in Section 112
(Bougainville Courts);
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“Bougainville
Executive Council” means the Bougainville Executive Council provided for
in Division VI.2 (Bougainville
Executive Council);
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“Bougainville
Government Service” means a Bougainville Government Service referred to in
Section 138 (Bougainville Government
Services);
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“Bougainville
general election” means a general election of the President of the
Autonomous Region of Bougainville and
of the members of the House of
Representatives;
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“Bougainville
governmental body” means –
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(a)
the Autonomous Bougainville Government; or
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(b)
any formal government below the level of the Autonomous Bougainville Government;
or
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(c)
an arm, department, agency or instrumentality of the Autonomous Bougainville
Government or of a formal level of government below
the level of the Autonomous
Bougainville Government; or
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(d) a body set up by Bougainville law or administrative act for governmental or administrative purposes; |
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“Bougainville
Judge” means a Bougainville Judge appointed under Section 124 (appointment
of other Judges);
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“Bougainville
Judicial Appointments Committee” means the Bougainville Judicial
Appointments Committee established by Section
121 (Bougainville Judicial
Appointments Committee);
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“Bougainville
law” means a law (other than this Constitution or alterations to it) made
by the House of Representatives
and includes a subordinate legislative enactment
made under a Bougainville law;
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“Bougainville
Law Reform Commission” means the Bougainville Law Reform Commission for
which provision is made under Section
220 (review of this Constitution,
etc.,);
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“Bougainville
Leadership Code” means the Bougainville Leadership Code provided for in
Part XIII (Leadership Code);
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“Bougainville
Ombudsman” means the Bougainville Ombudsman appointed under Section 165(2)
(Bougainville Ombudsman);
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“Bougainville
Peace Agreement” means the Bougainville Peace Agreement signed at Arawa on
30th August 2001;
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“Bougainville
Police Service” means the Bougainville Police Service established by
Section 138(1)(b) (establishment of
Bougainville Government
Services);
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“Bougainville
Public Service” means the Bougainville Public Service established by
Section 138(1)(a) (establishment of
Bougainville Government Services);
“Bougainville Public Service” means the Bougainville Public Service
established by
Section 138(1)(a) (establishment of Bougainville Government
Services);
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“Bougainville
Referendum” means the Referendum for which provision is made under
Division XIV.7 (Bougainville Referendum)
of the National Constitution in
accordance with the Bougainville Peace Agreement and Part XVII of this
Constitution;
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“Bougainville
Salaries and Remuneration Commission” means the Bougainville Salaries and
Remuneration Commission established
by Section 162 (Bougainville Salaries and
Remuneration Commission);
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“Bougainville
Senior Appointments Committee” means the Bougainville Senior Appointments
Committee under Part VII (Bougainville
Senior Appointments
Committee);
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“Chief
Justice of Bougainville” means the Chief Justice of Bougainville appointed
under Section 123 (appointment of Chief
Justice of Bougainville);
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“citizen”
means a citizen of the Independent State of Papua New Guinea;
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“constituency”
means the area in relation to which a person is to be elected as a member of the
House of Representatives,
and in relation to –
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(a) the President – means all the single member constituencies in Bougainville, whose boundaries are determined in accordance with Section 105 (constituencies), taken together as one constituency; and |
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(b)
each of the elected members representing single member constituencies –
means the constituency, whose boundaries are determined
in accordance with
Section 105 (constituencies), for which he was elected; and
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(c)
each of the women’s representative members – means the Regional
constituency whose boundaries are determined in accordance
with Section 105
(constituencies) for which she was elected; and
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(d) each of the former combatant members – means the Regional constituency, whose boundaries are determined in accordance with Section 105 (constituencies) for which he was elected; |
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“custom”
means the customs and usages of Bougainvilleans existing in relation to the
matter in question at the time when
and the place in relation to which the
matter arises, regardless of whether or not the custom or usage has existed from
time immemorial;
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“the
day fixed for the return of the writs for a general election”
means –
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(a) in the case of a general election where there is no extension of the time for the return of any writ or the time for the return of all writs is extended – the day by which the writs are to be returned; and |
(b) in any other case – the day by which the majority of the writs are to be returned; |
“fiscal self-reliance” means the first year in which the revenue from company tax, customs duties and 70% of value added tax (or of a tax which replaces value added tax) collected in Bougainville is equal to the value of the recurrent grant referred to in Section 48 of the Organic Law on Peace-Building in Bougainville – Autonomous Bougainville Government and Bougainville Referendum; |
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“fiscal
year”, in relation to any activity of the Autonomous Bougainville
Government, means the period of 12 months commencing
on 1 January or on such
other date as is fixed by a Bougainville law for the purpose;
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“former
combatant” means a person who was a combatant in the Bougainville
Resistance Force or the Bougainville Revolutionary
Army or the Me’ekamui
Defence Force during the Bougainville conflict;
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“of
full capacity” in relation to a person, means that he is not of unsound
mind within the meaning of any law relating
to the custody or protection of the
persons or property of persons of unsound mind;
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“House
of Representatives” means the House of Representatives established by
Section 55 (establishment and composition
of House of
Representatives);
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“law”
includes the underlying law;
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“Law
Officers of Bougainville” means the Law Officer or Law Officers of the
Autonomous Region of Bougainville appointed
under Section 113 (Law Officers of
Bougainville);
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“lawyer”
means a person who has been admitted to practise as a lawyer under a
Bougainville law or an Act of the National
Parliament;
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“the
Minister” in relation to this Constitution or any provision, matter or
thing, means the member of the Bougainville
Executive Council for the time being
administering the provision that governs that matter or thing, as the case may
be;
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“misconduct
in office” means misconduct in office as described in Section 172
(particular responsibilities of office)
or as prescribed by a Bougainville law
made for the purposes of that section or Section 173 (further provisions
concerning the Leadership
Code);
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“National
Constitution” means the Constitution of the Independent State of Papua New
Guinea;
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“National
Court” means the National Court of Papua New Guinea established under
Section 166 (establishment of the National
Court) of the National
Constitution;
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“National
Government” means the National Government of the Independent State of
Papua New Guinea;
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“National
Judicial and Legal Services Commission” means the Judicial and Legal
Services Commission established by Section
186 (establishment of the Commission)
of the National Constitution;
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“Papua
New Guinea” means the Independent State of Papua New Guinea;
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“plebiscite”
means a referendum for the purpose of gauging public opinion as provided for in
Section 195 (consultation
through plebiscite);
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“poll”
means a poll under Section 196 (participation in, and poll for law-
making);
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“President”
means the holder of the office of President of the Autonomous Region of
Bougainville established under Section
88 (office of President);
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“public
accounts of Bougainville” means all accounts, books and records of, or in
the custody, possession or control of,
the Bougainville Executive or of a public
officer, relating to public property or public moneys of
Bougainville;
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“public
moneys of Bougainville” includes moneys held in trust by the Bougainville
Executive or a public officer in his
capacity as such, whether or not they are
so held for particular persons;
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“public
office-holder” means –
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(a) a member of any of the Bougainville Government Services or of the service of a formal level of government; or |
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(b)
any Bougainville Constitutional Office-holder; or
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(c) the holder of any office or position established by statute for administrative or governmental purposes; or |
(d) the holder of any office or position declared by a statute to be a public office; |
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“the
public trustee” means the officer (by whatever title known) charged with
the duty of administering deceased intestate
estates;
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“referendum
on independence” means the Bougainville Referendum;
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“Regional
Committee” means a Regional Committee under Section 71(1)(b)
(Committees);
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“Regional
Government” means a Regional Government under Section 50 (Regional
Government);
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“seat”,
in relation to the House of Representatives, includes the position of an elected
member, whether or not the position
is for the time being filled;
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“simple
majority vote” means affirmative votes of more than one half of the
persons present and voting;
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“single
member constituency” means a constituency which is represented in the
House of Representatives by a single member,
referred to in Section
105(1)(constituencies);
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“Speaker”
means the Speaker of the House of Representatives appointed under Section 60(2)
(Speaker);
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“taxation”
includes rates, charges and fees and imposts of any kind;
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“value
added tax” includes a tax which replaces value added tax;
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“Vice-President”
means the Vice-President of the Autonomous Region of Bougainville under Section
95 (office of Vice-President);
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“village
court” means a court referred to in Section 126(2) (establishment of other
courts) having jurisdiction at village
level only.
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(2)
Unless the contrary intention appears, where an expression is defined for any
purpose in this Schedule, then for that purpose
all grammatical variations and
cognate and related expressions are to be understood in the same
sense.
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(3)
Unless the contrary intention appears, a reference in this Constitution to an
institution, office or other thing shall be read
as a reference to the
appropriate institution, office or thing established or provided for in this
Constitution, or referred to in
the Preamble to this Constitution.
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SCH.
2.3. THIS CONSTITUTION TAKES ACCOUNT OF CHANGING CIRCUMSTANCES.
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This
Constitution is to be interpreted so as to take account of changing
circumstances.
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SCH.
2.4. FAIR MEANING TO BE GIVEN TO LANGUAGE USED.
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(1) This Constitution is intended to be read as a whole. |
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(2)
All provisions of, and all words, expressions and propositions in this
Constitution shall be given their fair and liberal meaning.
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SCH. 2.5. STATEMENTS OF GENERAL PRINCIPLE. |
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Where
a provision of this Constitution is expressed to state a proposition “in
principle”, then –
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(a) an act (including a legislative, executive or judicial act) that is inconsistent with the proposition is not, by reason of that inconsistency alone, invalid or ineffectual; but |
(b) if the act is reasonably capable of being understood or given effect to in such a way as not to be inconsistent with the proposition it shall be so given effect to. |
SCH. 2.6. “NON-JUSTICIABLE”. |
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Where
this Constitution declares a question to be non-justiciable, the question may
not be heard or determined by any Court or tribunal,
but nothing in this section
limits the jurisdiction of the Bougainville Ombudsman or of any other tribunal
established for the purposes
of Part XIII (Leadership Code).
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SCH. 2.7. GENDER AND NUMBER. |
In this Constitution – |
(a) words importing the masculine gender include females; and |
(b) words in the singular include the plural and words in the plural include the singular. |
SCH. 2.8. PROVISION WHERE NO TIME PRESCRIBED. |
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Where
no time is prescribed or allowed within which an act is required or permitted by
this Constitution to be done, the act shall
or may be done, as the case may be,
with all convenient speed and as often as the occasion arises.
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SCH.
2.9. EXERCISE AND PERFORMANCE OF POWERS AND DUTIES.
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(1)
Where this Constitution confers a power or imposes a duty, the power may be
exercised, or the duty shall be performed, as the
case may be, from time to time
as occasion requires.
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(2)
Where this Constitution confers a power or imposes a duty on the holder of an
office as such, the power may be exercised, or the
duty shall be performed, as
the case may be, by the holder (whether substantive or other) for the time being
of the office.
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(3)
Where this Constitution confers a power to make any instrument or decision
(other than a decision of a court), the power includes
power exercisable in the
same manner and subject to the same conditions (if any) to alter the instrument
or decision.
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(4)
Subject to Subsection (5), where this Constitution confers a power to make an
appointment, the power includes power to remove
or suspend a person so
appointed, and to appoint another person temporarily in the place of a person so
removed or suspended or,
where the appointee is for any reason unable or
unavailable to perform his duties, to appoint another person temporarily in his
place.
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(6)
The power provided for by Subsection (4) is exercisable only subject to any
conditions to which the exercise of the original power
or appointment was
subject.
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SCH.
2.10. POWER OF MAJORITY OF MORE THAN TWO PERSONS AND QUORUMS.
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(1)
Where this Constitution requires or permits an act or thing to be done by more
than two persons, a majority of them may do it.
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(2)
A power conferred by this Constitution, otherwise than on the body in question,
to determine the procedures of a body includes
power to determine a
quorum.
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(3)
The exception contained in Subsection (2) does not apply to the Bougainville
Executive Council.
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SCH. 2.11. ATTAINMENT OF AGE. |
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For
any purpose of this Constitution, a person attains a certain age at the first
moment of the relevant anniversary of his birth.
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SCH. 2.12. REFERENCES TO SERIES. |
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(1)
Where in this Constitution a reference is made to a series by reference to two
numbers, one at the beginning and one at the end
of the series, each of those
numbers forms part of the series.
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(2)
The reference in Subsection (1) to numbers includes, where the elements of a
series are identified by letters or in some other
manner, references to letters
or other means of identification.
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SCH. 2.13. RESIDENCE. |
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(1)
Where in this Constitution there is a requirement for any purpose of permanent
residence or of continuous residence in a place
(including the area of
Bougainville), a Bougainville law may provide that –
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(a) periods
of temporary absence from that place shall be counted as periods of residence in
that place; or
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(b) periods
of temporary absence from that place shall not be counted as periods of
residence in that place but otherwise do not affect
the continuity of
residence.
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(2)
In Subsection (1), “temporary absence” means, subject to Subsection
(3), absence for temporary purposes with the intention
of
returning.
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(3)
A Bougainville law may further provide for the definition of classes of absence
that constitute or do not constitute temporary
absence for the purposes of any
provision of this Constitution.
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SCH. 2.14. EFFECT OF TIME LIMITS. |
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(1)
Where in this Constitution a time limit is imposed for the doing of an act
(whether the provision is mandatory, directory or permissive,
and whether it is
positive or negative), and in a particular case it is not practicable to comply
with that limitation, the period
shall be deemed to be extended by whatever
period is necessary to make compliance practicable.
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(2)
The operation of Subsection (1) is not excluded by a provision that
unqualifiedly specifies a time limit or a maximum time limit.
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SCH. 2.15. REPEAL, ETC., |
(1) The repeal of this Constitution or a part of this Constitution does not – |
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(a) revive
anything (including a statute or any part of the underlying law) that was not in
force or existing immediately before the repeal
took effect; or
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(b) affect
the previous operation of the repealed provisions or anything duly done or
suffered under them; or
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(c) affect
any right, privilege, obligation or liability acquired, accrued or incurred
under the repealed provisions; or
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(d) affect
any penalty, forfeiture or punishment incurred in respect of an offence
committed against the repealed provisions; or
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(e) affect
any investigation, legal proceeding or remedy in respect of any such right,
privilege, obligation, liability, penalty, forfeiture
or
punishment,
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and
any such investigation, legal proceeding or remedy may be instituted, continued
or enforced, and the penalty, forfeiture or punishment
may be imposed, as if the
repealed provisions had continued in force.
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(2)
In particular, the repeal of this Constitution or a part of this Constitution
does not –
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(f) affect
any liability under Part XIII (Leadership Code); or
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(g) prevent
the Bougainville Ombudsman or any other tribunal established for the purpose of
that Part from investigating any act,
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to
which the repealed provisions were relevant.
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(3)
Where this Constitution or part of this Constitution is repealed and re-enacted
(with or without modification), a reference in
any other law to any of the
repealed provisions shall, unless the contrary intention appears, be read as a
reference to the amended
or replacing provision.
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(4)
In this section, “repeal” includes revocation, suspension and
expiry.
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SCH. 2.16. DISALLOWANCE, ETC., |
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(1)
Where this Constitution provides that a law may be disallowed, the disallowance
takes effect in the same way as a repeal of a
provision of this Constitution
takes effect except that, if the disallowed law altered any other law, the
disallowance revives the
other law as in force before the
alteration.
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(2)
For the purpose of Subsection (1), a refusal or failure by the House of
Representatives to confirm, approve or extend a law that
requires such
confirmation, approval or extension has the same effect as a
disallowance.
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SCH. 2.17. INDEPENDENCE. |
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Where
this Constitution provides that a person or institution is not subject to
control or direction, or otherwise refers to the independence
of a person or
institution, that provision does not affect
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(a) control or direction by a court; or |
(b) the regulation, by or under this Constitution or a Bougainville law, of the exercise or performance of the powers, functions, duties or responsibilities of the person or institution; or |
(c) the exercise of jurisdiction under Part XIII (Leadership Code), Section 159 (functions of the Bougainville Auditor-General), or Division XI.5 (the Public Accounts Committee), |
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and
does not constitute an appropriation of, or authority to expend,
funds.
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SCH. 2.18. REGULATION OF ACTS, ETC., |
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A
provision of this Constitution that provides for the regulation of an act or
thing does not extend to prohibition, whether in law
or in effect.
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SCH. 2.19. CONSULTATION. |
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(1)
Subject to Subsection (2), in principle, where this Constitution or a
Bougainville law provides for consultation between persons
or bodies, or between
persons and bodies, the consultation must be meaningful and allow for a genuine
interchange and consideration
of views.
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(2)
Where consultation referred to in this Constitution is consultation between the
National Government and the Autonomous Bougainville
Government provided for by
Part XIV (Bougainville Government and Bougainville Referendum) of the National
Constitution or by the
Organic Law on Peace Building in Bougainville -
Bougainville Government and Bougainville Referendum, such consultation shall be
concluded
on the following basis: –
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(a) views
shall be communicated in a timely manner in writing (or, by prior written
agreement, by electronic equivalent) to a specified
point of
contact;
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(b) adequate
opportunity shall be given to respond in a similar manner;
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(c) where
there are differences, meaningful views shall be exchanged within an adequate
time-frame, either agreed or specified in a written
document (or by prior
written agreement, by electronic equivalent) with a view to reaching
agreement;
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(d) a
clear, written record of the outcome of a consultation shall be prepared and
made available to all parties.
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SCH. 2.20. CONFERRING OF POWERS TO INCLUDE DELEGATION, ETC., |
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Where
this Constitution confers on an authority legislative or executive powers or
functions, it includes the power of delegation
or subdelegation of such powers
or functions.
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SCH. 2.21. PRINCIPLES OF NATURAL JUSTICE. |
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(1)
Subject to this Constitution, the principles of natural justice are the general
rules and principles of law known by that name
developed for control of judicial
and administrative proceedings.
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(2)
The minimum requirement of natural justice is the duty to act fairly and, in
principle, to be seen to act fairly.
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SCHEDULE 3 – .
Section 1
BOUNDARIES OF BOUGAINVILLE PROVINCE SPECIFIED IN NATIONAL ORGANIC LAW ON PROVINCIAL BOUNDARIES.
PROVINCIAL BOUNDARIES. |
BOUGAINVILLE PROVINCE. |
|
Commencing
at the point of intersection of the meridian 154 degrees east longitude with the
Equator thence by the said Equator east
to its intersection with the meridian
160 degrees east longitude thence by the said meridian 160 degrees east
longitude south to
its intersection with the parallel 4 degrees 50 minutes south
latitude thence by the said parallel 4 degrees 50 minutes south latitude
west to
its intersection with the meridian 159 degrees east longitude thence by a
straight line south-westerly to a point distant
6 nautical miles on a bearing of
42 degrees true from Cape Friendship thence by a straight line southerly to a
point distance 4 nautical
miles on a bearing of 70 degrees 30 minutes true from
Cape Friendship aforesaid thence by a straight line south-westerly to a point
distant 3 nautical miles due south from the southern point of the peninsula
which bounds the harbour of Tonelei on the east thence
by a straight line
south-westerly to a point distant 3 nautical miles due south from Moila Point
thence by a straight line westerly
to a point distant 8 nautical miles on a
bearing of 249 degrees true from Moila Point aforesaid thence by a straight line
south-westerly
to the intersection of the parallel 8 degrees south latitude with
the meridian 154 degrees east longitude thence by the said meridian
154 east
longitude north to the point of commencement.
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SCHEDULE 4 – .
Section 42
NATIONAL CONSTITUTION PROVISIONS RELATING TO FUNCTIONS AND POWERS OF THE AUTONOMOUS BOUGAINVILLE GOVERNMENT.
|
“290.
FUNCTIONS AND POWERS AVAILABLE TO THE BOUGAINVILLE GOVERNMENT.
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(1)
Subject to this Part and the Agreement, the functions and powers available to
the Bougainville Government in and in relation to
Bougainville are as specified
in this section.
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(2)
The functions and powers available to the Bougainville Government in and in
relation to Bougainville are the following:
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(a) agriculture;
|
|
(b) arts;
|
|
(c) building
regulations;
|
|
(d) cemeteries;
|
|
(e) censorship;
|
|
(f) children;
|
|
(g) churches
and religion;
|
|
(h) civil
registration;
|
|
(i) communications
and information services within Bougainville;
|
|
(j) community
development;
|
|
(k) corporation
law;
|
|
(l) culture;
|
|
(m) education;
|
|
(n) energy
(including electricity and power generation and distribution);
|
|
(o) environment;
|
|
(p) family
law;
|
|
(q) fire
service;
|
|
(r) fisheries
(other than highly migratory or straddling stocks);
|
|
(s) forestry
and agro-forestry;
|
|
(t) gambling,
lotteries and games of chance;
|
|
(u) harbours
and marine;
|
|
(v) health;
|
|
(w) heritage;
|
|
(x) home
affairs, including youth and social welfare;
|
|
(y) housing
(but not State-owned housing);
|
|
(z) information
technology;
|
|
(za) insurance;
|
|
(zb) intellectual
property;
|
|
(zc) labour
and employment (other than industrial relations);
|
|
(zd) land
and natural resources;
|
|
(ze) land,
sea and air transport;
|
|
(zf) language;
|
|
(zg) libraries
and measures;
|
|
(zh) licensing
of public entertainment;
|
|
(zi) liquor;
|
|
(zj) livestock;
|
|
(zk) local-level
government;
|
|
(zl) manufacturing;
|
|
(zm) mining;
|
|
(zn) non-banking
financial institutions;
|
|
(zo) oil
and gas;
|
|
(zp) parks
and reserves;
|
|
(zq) physical
planning;
|
|
(zr) professions;
|
|
(zs) public
holidays;
|
|
(zt) public
works;
|
|
(zu) science
and technology;
|
|
(zv) sports
and recreations;
|
|
(zw) statistics
(other than National Census);
|
|
(zx) symbols
of the Bougainville Government;
|
|
(zy) time
zones;
|
|
(zz) tourism;
|
|
(zza) trade,
commerce and industry;
|
|
(zzb) waste
management;
|
|
(zzc) water
and sewerage;
|
|
(zzd) water
sources;
|
|
(zze) wild
life preservation;
|
|
(zzf) wills
and succession;
|
|
(zzg) such
other functions and powers for which, in accordance with this Part and the
Agreement, the Bougainville Government may be responsible.
|
|
(3)
The Bougainville Government is responsible for
|
|
(zzh) administration
of justice including dispute resolution; and
|
|
(zzi) he
operation and the functions and powers of Bougainville Constitutional
Office-holders; and
|
|
(zzj) the
operation of and the powers and functions of Bougainville Government
Services,
|
|
in
accordance with the Agreement and this Part.
|
|
(4)
Where the function and power relating to foreign investment applications has
been transferred to the Bougainville Government,
it shall be exercised in the
following manner:
|
|
(zzk) each
application for foreign investment relating to Bougainville shall be lodged in
duplicate, one for the National Government and
one for the Bougainville
Government;
|
|
(zzl) each
application must satisfy the National Government’s reasonable foreign
investment requirements for Papua New Guinea as a
whole;
|
|
(zzm) the
Bougainville Government, through the Bougainville Public Service or by an
authority established by the Bougainville Government
for the purpose, shall be
responsible for considering each application and for determining whether the
requirements referred to in
Paragraph (b) are met;
|
|
(zzn) where
satisfied that an application meets the requirements referred to in Paragraph
(b), the Bougainville Government through the Bougainville
Public Service or by
an authority established by the Bougainville Government for the purpose, may
accept the application, or without
limit to its discretion, may refuse it or
accept it subject to conditions;
|
|
(zzo) the
Bougainville Government, through the Bougainville Public Service or by an
authority established by the Bougainville Government
for the purpose, and the
National Government, and any authority established by the National Government
for the purpose, shall consult
and co-operate at all stages of the consideration
of an application;
|
|
(zzp) there
shall be joint and ongoing review and development of foreign investment policy
by the two Governments and the authorities referred
to in Paragraph (e) to
promote restoration and development in Bougainville;
|
|
(zzq) a
dispute as to whether an application does or does not comply with the
requirements referred to in Paragraph (b) shall be resolved
through the dispute
resolution procedure.
|
|
(5)
The Bougainville Government shall have the functions and powers necessary to
develop the infrastructure relative to its powers
and functions under this
section.
|
“291. FUNCTIONS AND POWERS OF THE NATIONAL GOVERNMENT AND OF THE BOUGAINVILLE GOVERNMENT IN RELATION TO CRIMINAL LAW. |
|
(1)
The provisions of Sections 295 (process of transfer of functions and powers),
296 (relationships of National and Bougainville
laws) and 298 (National
Government assets and land) do not apply to this section.
|
|
(2)
The Bougainville Government shall have power, subject to Subsection
(4) –
|
|
(a) to
adopt the Criminal Code; and
|
|
(b) to
create and set penalties for offences incidental to the exercise of its agreed
powers and functions; and
|
|
(c) to
amend National laws relating to summary offences and other laws relating to
criminal law as they apply in Bougainville; and
|
|
(d) to
make laws relating to criminal law, other than a law equivalent to the Criminal
Code.
|
|
(3)
The Criminal Code shall apply in and to Bougainville until adopted under
Subsection (2)(a).
|
|
(4)
Where the Bougainville Government has adopted the Criminal Code under Subsection
(2) (a), it may amend the Criminal Code as adopted
|
|
(e) with
the consent of the National Government; or
|
|
(f) in
accordance with the following: –
|
|
(i) the
principles contained in the Agreement being: –
|
|
(A)
changes of the principles of the criminal law shall be
evolutionary;
|
|
(B)
there shall be no large scale changes to the coverage of subjects by the
criminal law;
|
|
(ii) the
procedures contained in the Agreement being: –
|
(A) the Bougainville Government will cause to be published in the National Gazette amendments to the Criminal Code as adopted proposed by the Bougainville Government and such amendments shall not come into operation without the agreement of the National Government; |
(B) in the event that the National Government does not accept any amendments proposed by the Bougainville Government, it may require further consultation with the Bougainville Government and in the event of failure to agree, the dispute resolution procedure shall apply. |
“292. SUBJECTS NOT SPECIFIED IN SECTIONS 289, 290 AND 291. |
|
(1)
Subject to Subsection (2), the function and power in relation to any
subject –
|
|
(a) not
specified in Section 289 (powers and functions of the National Government),
Section 290 (powers and functions available to the
Bougainville Government) and
Section 291 (functions and powers of the National Government and of the
Bougainville Government in relation
to criminal law); and
|
|
(b) not
coming within the category of any subject specified in Section 289 (powers and
functions of the National Government) Section 290
(powers and functions
available to the Bougainville Government) and Section 291 (functions and powers
of the National Government
and of the Bougainville Government in relation to
criminal law),
|
|
shall
be a power and function of the National Government, until otherwise determined
in accordance with this section.
|
|
(2)
Where the National Government or the Bougainville Government proposes to
legislate on a subject to which Subsection (1) applies,
it shall notify the
other Government of its proposals and consult with the other Government with a
view to reaching agreement on
which Government should be responsible for the
subject, and where agreement is not reached, it shall not
legislate.
|
|
(3)
Where either the National Government or the Bougainville Legislature passes a
law on a subject to which Subsection (1) applies,
the other Government may
invoke the dispute resolution procedure, and –
|
|
(c) pending
final determination of the dispute the law shall not take effect, unless both
Governments agree that it should take effect;
and
|
|
(d) on
the determination of the dispute resolution procedure, the law shall or shall
not take effect in accordance with that determination.
|
|
(4)
Any dispute between the National Government and the Bougainville Government over
which Government is responsible for a function
or power shall be resolved by
applying the principles governing the division of powers as specified in the
Agreement.
|
“293. INTERNATIONAL OBLIGATIONS, ETC., OF THE STATE IN RESPECT OF THE POWERS AND FUNCTIONS OF THE BOUGAINVILLE GOVERNMENT. |
|
(1)
In this section, “international obligations” includes treaties and
other written international agreements to which
the State is or becomes a
party.
|
|
(2)
The powers and functions available to the Bougainville Government specified in
Section 290 (powers and functions available to
the Bougainville Government)
will not be exercised in a manner inconsistent with Papua New Guinea’s
international obligations
and human rights regime –
|
|
(a) in
existence on the date of the coming into operation of this Part;
and
|
|
(b) entered
into after the date of coming into operation of this Part, in accordance with
this section.
|
|
(3)
The National Government –
|
|
(c) shall
consult with the Bougainville Government on –
|
|
(i) any
proposed new international obligations likely to affect the exercise by the
Bougainville Government of the functions and powers
available to it under this
Part; or
|
|
(ii) any
proposed future border agreement (other than one concerning defence or national
security) affecting the jurisdiction of the Bougainville
Government;
and
|
|
(d) shall
not enter into a border agreement (other than one concerning defence or national
security) affecting the jurisdiction of the
Bougainville Government without the
agreement of the Bougainville Government.
|
|
(4)
For the purposes of Section 117(3) (treaties), the consent of Papua New Guinea
to be bound as a party to a treaty which –
|
|
(e) has
a purpose of altering the autonomy arrangements contained in the Agreement;
or
|
|
(f) being
a border agreement (other than one concerning defence or national security)
affects the jurisdiction of the Bougainville Government,
|
|
shall
not be given unless –
|
|
(g) the
National Government and the Bougainville Government have agreed on the contents
of the treaty; and
|
|
(h) the
provisions of Section 117(3)(a) or (b) (treaties) have been complied
with.
|
|
(5)
Any disagreement between the National Government and the Bougainville Government
as to whether any treaty has a purpose of altering
the autonomy arrangement
contained in the Agreement shall be resolved in accordance with the dispute
resolution procedure.
|
|
(6)
Any differences between the National Government and the Bougainville Government
arising from generally accepted rules of international
law shall be resolved in
accordance with the dispute resolution procedure.
|
|
(7)
The Bougainville Government may, through an agreed mechanism, request the
assistance or concurrence of the National Government –
|
|
(i) to
participate in the negotiation of international agreements of particular
relevance to Bougainville; or
|
|
(j) to
negotiate international agreements on its own account.
|
“294. FUNCTIONS AND POWERS OF THE BOUGAINVILLE GOVERNMENT ON ESTABLISHMENT AND WITHIN 12 MONTHS THEREAFTER. |
|
(1)
Prior to the establishment of the Bougainville Government the Bougainville
Interim Provincial Government may give to the National
Government reasonable
notice of –
|
|
(a) functions
or powers available to the Bougainville Government to be transferred;
and
|
|
(b) institutions
expected to be established under the Bougainville Constitution,
|
|
within
the period of 12 months commencing on the date of the establishment of the
Bougainville Government.
|
|
(2)
The Bougainville Government shall, on its establishment, have the same functions
and powers as the Bougainville Interim Provincial
Government, together with such
other functions and powers transferred under Subsection (1).
|
“295. PROCESS OF TRANSFER OF FUNCTIONS AND POWERS. |
|
Where
the Bougainville Government wishes a function or power available to it to be
transferred to it, it shall –
|
|
(a) take
full account of its needs and capacity in relation to the functions or power;
and
|
|
(b) initiate
the transfer by giving to the National Government 12 months’ notice of its
intention to seek the transfer of the function
or power; and
|
|
(c) consult
with the National Government concerning the transfer,
|
unless both Governments otherwise agree. |
“296. RELATIONSHIP OF NATIONAL AND BOUGAINVILLE LAWS. |
(1) National laws relating to the functions and powers available to the Bougainville Government shall continue to apply until replaced by Bougainville laws. |
(2) The – |
|
(a) National
Government may legislate on subjects specified in Section 290 (functions and
powers available to the Bougainville Government)
but not so as to be
inconsistent with Bougainville laws on such subjects; and
|
|
(b) the
Bougainville Government may legislate on subjects specified in Section 289
(functions and powers available to the National Government)
but not so as to be
inconsistent with National laws on such subjects.
|
“297. MANNER OF IMPLEMENTATION OF TRANSFER OF FUNCTIONS AND POWERS. |
An Organic Law shall make provision for – |
|
(a) the
transfer together of closely linked functions and powers; and
|
|
(b) the
manner of overcoming difficulties of capacity or economic circumstances
preventing the effective exercise of a function or power;
and
|
|
(c) the
resolution of issues in dispute in the event of failure to overcome difficulties
referred to in Paragraph (b); and
|
|
(d) the
resolution of difficulties in dividing the personnel, assets or funding of an
institution or service organized on a regional or
National basis;
and
|
|
(e) the
making of arrangements to share access to or use of an institution or service
organised on a regional or National basis to include
cost-sharing;
and
|
|
(f) the
plans prepared and agreed by the National Government and the Bougainville
Government for co-operating in implementing the transfer
of functions for which
the Bougainville Government will become responsible.
|
“298. NATIONAL GOVERNMENT ASSETS AND LAND. |
|
(1)
Subject to Subsection (2), the National Government shall transfer to the
Bougainville Government, at the same time as the transfer
of a function or
power, such assets and land as are associated with the function or
power.
|
|
(2)
Where the National Government has a continuing responsibility in respect of a
function or power transferred to the Bougainville
Government, it may retain
assets and land associated with that function or power to the extent necessary
to carry out its continuing
responsibility.
|
“299. TRANSFER OR DELEGATION OF FUNCTIONS AND POWERS. |
|
The
National Government or the Bougainville Government may, by agreement, transfer
or delegate any function or power (including a
financial function or power) to
the other Government.”.
|
SCHEDULE 5 – .
Sections 122 and 189
MATTERS RELATING TO BOUGAINVILLE CONSTITUTIONAL OFFICE-HOLDERS
5.1 QUALIFICATIONS FOR APPOINTMENT AS CHIEF JUSTICE OF BOUGAINVILLE OR AS A BOUGAINVILLE JUDGE. |
(a) Qualification to be held by a citizen. |
A citizen is qualified to be appointed as Chief Justice of Bougainville or as a Bougainville Judge if – |
|
(i)
he –
|
|
(A)
is a graduate in law of a university in Papua New Guinea or of a university of
another country the degree in law of which is recognised
by the Bougainville
Judicial Appointments Committee as a sufficient academic qualification for
appointment; and
|
(B) has been admitted to practise as a lawyer for not less than four years; and |
|
(C)
is not disqualified under Schedule 5.7; or
|
|
(ii)
he –
|
|
(A)
is a graduate of a university in Papua New Guinea or of a university of another
country the degree in law of which is recognized
by the Bougainville Judicial
Appointments Committee as a sufficient academic qualification for appointment;
and
|
|
(B)
has not less than five years experience in Bougainville or Papua New Guinea as a
whole
|
|
(1)
as a Deputy Chief Magistrate; or
|
|
(2)
as a Principal Magistrate; or
|
|
(3)
as a Magistrate Grade V; or
|
|
(4)
as a Magistrate Grade IV; or
|
|
(5)
as a Magistrate Grade III; or
|
|
(6)
as a Magistrate or the equivalent in a Bougainville court referred to in Section
112(1)(b) (Bougainville Courts); or
|
|
(7)
partly as any one of the categories specified in Subclauses (1) to (6) and
partly as another; and
|
|
(C)
is not disqualified under Schedule 5.7.
|
|
|
|
(b)
Qualifications to be held by a non-citizen.
|
A non-citizen is qualified to be appointed as Chief Justice of Bougainville or as a Bougainville Judge if – |
|
(i)
he –
|
|
(A)
is a graduate of a university in Papua New Guinea or of a university of another
country the degree in law of which is recognized
by the Bougainville Judicial
Appointments Committee as a sufficient academic qualification for appointment;
and
|
|
(B)
is or has been a lawyer who has practised as a lawyer for not less than five
years –
|
|
(1)
in Bougainville or Papua New Guinea as a whole; or
|
|
(2)
in a country with a legal system that, in the opinion of the Bougainville
Judicial Appointments Committee, is substantially similar
to the legal system of
Bougainville or Papua New Guinea as a whole; or
|
|
(3)
in Bougainville or Papua New Guinea as a whole and in a country referred to in
Subclause (2); and
|
(ii) he is or has been a Judge of a court of unlimited jurisdiction in a country with a legal system that, in the opinion of the Bougainville Judicial Appointments Committee, is substantially similar to the legal system of Bougainville or Papua New Guinea as a whole, |
|
and
is not disqualified under Schedule 5.7.
|
5.2 QUALIFICATIONS FOR APPOINTMENT AS BOUGAINVILLE PUBLIC PROSECUTOR OR BOUGAINVILLE PUBLIC SOLICITOR. |
|
A
person is qualified to be appointed as the Bougainville Public Prosecutor or as
the Bougainville Public Solicitor –
|
(a) if he is a lawyer who has practised as a lawyer – |
|
(i)
in Papua New Guinea; or
|
(ii) in a country with a legal system that, in the opinion of the Bougainville Judicial Appointments Committee, is substantially similar to the legal system of Papua New Guinea; or |
(iii) in Papua New Guinea and in a country referred to in Subparagraph (ii), |
for a period of not less than seven years after obtaining full admission to practise as a lawyer; and |
(b) where he is a person to whom Subparagraph (ii) refers and he has not been admitted to practise in Papua New Guinea, he is qualified to be so admitted. |
5.3 QUALIFICATIONS FOR APPOINTMENT AS BOUGAINVILLE OMBUDSMAN. |
|
A
person is eligible for appointment as the Bougainville Ombudsman where he is, in
the opinion of the Bougainville Senior Appointments
Committee, a person of
integrity, independence of mind, resolution and high standing in the community,
and with relevant experience
in public administration, law, accountancy or other
relevant discipline.
|
5.4 QUALIFICATIONS FOR APPOINTMENT AS BOUGAINVILLE ELECTORAL COMMISSIONER. |
|
A
person is eligible for appointment as the Bougainville Electoral Commissioner
where he –
|
|
(a) has
experience of conducting National elections, Provincial elections, Local-level
Government elections or elections of the President
or of members of the House of
Representatives; and
|
|
(b) is,
in the opinion of the Bougainville Senior Appointments Committee, a person of
integrity and independence of mind.
|
5.5 QUALIFICATIONS FOR APPOINTMENT AND DISQUALIFICATIONS FROM OFFICE AS BOUGAINVILLE AUDITOR-GENERAL. |
|
5.5.1
A person is eligible for appointment as the Bougainville Auditor-General if he
possesses such accountancy qualifications as,
in the opinion of the Bougainville
Senior Appointments Committee, are appropriate.
|
|
5.5.2
The Bougainville Auditor-General shall not directly or indirectly accept or
receive any benefit from, or participate in, any
enterprise, institution, fund
or other body –
|
(a) that holds a concession from the Autonomous Bougainville Government or the National Government; or |
(b) that is assisted in any way by the Autonomous Bougainville Government or the National Government; or |
(c) in the management of which the Autonomous Bougainville Government or the National Government has a share; or |
|
(d)
that is subject to –
|
|
(i)
the control of the Autonomous Bougainville Government or the National
Government; or
|
(ii) inspection and audit by the Bougainville Auditor-General or the National Auditor-General. |
5.5.3 Nothing in Schedule 5.5.2 prevents the Bougainville Auditor-General from obtaining normal bank loans from a bank, which is wholly or partially owned by the Autonomous Bougainville Government or the National Government. |
5.6 QUALIFICATIONS FOR APPOINTMENT AS HEAD OF OTHER BOUGAINVILLE COURTS. |
A person who – |
(a) is qualified for appointment as a Bougainville Judge; and |
(b) is a graduate in law of a university in Papua New Guinea and has not less than five years experience in Bougainville or Papua New Guinea as a whole as a full-time magistrate or as a member of a Bougainville court; and |
(c) has knowledge and experience of the Bougainville situation and of Bougainville kastom, |
|
is
qualified for appointment as the Head of other Bougainville Courts.
|
5.7 DISQUALIFICATION FROM OFFICE OF CERTAIN BOUGAINVILLE CONSTITUTIONAL OFFICE-HOLDERS. |
5.7.1 Schedule 5.7.2 does not apply to a Constitutional Office-holder appointed by the Bougainville Judicial Appointments Committee. |
5.7.2 A person is not qualified to be, or to remain, a Bougainville Constitutional Office-holder to whom this Schedule 5.7 applies if he is – |
|
(a)
President, or a candidate for election as President; or
|
|
(b)
a member of, or a candidate for election to –
|
|
(i)
the House of Representatives; or
|
|
(ii)
a level of formal government in Bougainville; or
|
|
(iii)
the National Parliament; or
|
|
(iv)
a Provincial Government; or
|
|
(v)
a Local-level Government or Authority; or
|
|
(c)
an office-holder in a political party registered under a Bougainville law or
under a National law; or
|
(d) declared bankrupt by a court of competent jurisdiction and remains bankrupt; or |
(e) of unsound mind within the meaning of any law relating to the protection of the person or property of persons of unsound mind; or |
|
(f)
under sentence of death or imprisonment.
|
5.8 SPECIAL CONDITIONS OF EMPLOYMENT OF BOUGAINVILLE CONSTITUTIONAL OFFICE-HOLDERS. |
5.8.1 A Bougainville Constitutional Office-holder shall not – |
(a) actively engage in politics; or |
(b) subject to Schedule 5.8.2, engage either directly or indirectly in the management or control of a corporation or other body of persons carrying on business for profit; or |
(c) except on leave of absence granted by the President, or because of illness, absent himself from office for more than 14 consecutive days or more than 28 days in any period of 12 months; or |
(d) subject to Schedule 5.8.3, acquire by gift or otherwise, or use or hold in any other manner any interest in, any property or solicit, accept or receive any other benefit in addition to his terms and conditions of employment. |
5.8.2 Nothing in Schedule 5.8.1(b) prevents a Bougainville Constitutional Office-holder from holding office in a professional body in relation to which his qualifications are relevant. |
5.8.3 Subject to Part XIII (Leadership Code), a Bougainville Constitutional Office-holder may purchase, lease or otherwise acquire land in the same manner and subject to the same condition as any other Bougainvillean. |
5.9 RESIGNATION. |
5.9.1 A Bougainville Constitutional Office-holder may resign by giving three months’ notice in writing of his intention to do so to the Bougainville Senior Appointments Committee, or, in the case of a Bougainville Constitutional Office-holder appointed by the Bougainville Judicial Appointments Committee, to the Bougainville Judicial Appointments Committee. |
5.9.2 In the case of the Chief Justice of Bougainville or of a Bougainville Judge the period of three months specified in Schedule 5.9.1 shall be deemed to commence on the twenty second day after the receipt by the Bougainville Judicial Appointments Committee of the notice except where the Committee by notice in writing to the Chief Justice of Bougainville or to the Bougainville Judge, as the case may be, fixes an earlier date. |
|
5.9.3
A Bougainville Constitutional Office-holder may withdraw his resignation at any
time before its commencement.
|
5.10 ANNUAL REPORTS, ETC., |
|
Subject
to the provisions of this Constitution, a Bougainville Constitutional
Office-holder –
|
(a) shall, at least once in every period of 12 months and at such times as are fixed by the Bougainville Executive Council, give to the President, for presentation to the House of Representatives, a report on the work of his constitutional office, with such recommendations as to improvement as he thinks proper; and |
(b) may, on his own initiative, and shall, in accordance with a Bougainville law, make other reports on the work of his constitutional office. |
5.11 ACTING BOUGAINVILLE CONSTITUTIONAL OFFICE-HOLDER. |
|
A
person who is qualified for appointment as a Bougainville Constitutional
Office-holder may be appointed to be an acting Bougainville
Constitutional
Office-holder –
|
(a) to fill temporarily a vacancy; or |
(b) in the case of the absence from duty for any reason of a Bougainville Constitutional Office-holder. |
5.12 RIGHTS ON TERMINATION OF EMPLOYMENT. |
|
A
Bougainville law shall make provision for the rights of a Bougainville
Constitutional office-holder on the termination of his employment
as
such.
|
SCHEDULE 6 – .
Section 187
IMMUNITY FROM PROSECUTION
6.1 PROVISIONS OF NATIONAL CONSTITUTION RELATING TO IMMUNITY FROM PROSECUTION. |
“344. IMMUNITY FROM PROSECUTION. |
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(1)
The purpose of this section is to assist in the reconciliation process in
Bougainville, and it is the intention of the Parliament
that the provisions of
this section be so applied as to assist in achieving this purpose.
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(2)
There shall be immunity from prosecution in accordance with this section in
respect of certain offences arising from crisis-related
activities in relation
to the Bougainville conflict.
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(3)
The Head of State, acting with, and in accordance with, the advice of the
National Executive Council, may, by declaration published
in the National
Gazette, declare –
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(a) subject
to Paragraph (b), the class or classes of offences to which the immunity is to
apply or not apply; and
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(b) the
nature of crisis-related activities which shall qualify the offences for
immunity; and
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(c) the
period of time to which the immunity shall apply; and
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(d) such
other matters as are necessary to ensure that the immunity can be
effected.
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(4)
Where a declaration has been made under Subsection (3), no charge shall be laid
and no prosecution –
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(e) shall
be initiated; or
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(f) if
initiated, shall be pursued,
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in
respect of an offence –
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(g) included
in the offences described pursuant to Subsection (3)(a); and
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(h) of
a nature described in Subsection (3)(b); and
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(i) committed
during the period specified in Subsection (3)(c).
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(5)
The provisions of this section – may –
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(j) be
applied generally in respect of classes of offences and classes of circumstance
without the need to identify alleged offenders;
and
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(k) shall
apply to offences whether or not a charge has been laid in respect of
them”.
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6.2 DECLARATION IN RESPECT OF IMMUNITY. |
“CONSTITUTION |
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DECLARATION
IN RESPECT OF IMMUNITY FROM PROSECUTION IN RESPECT OF CERTAIN OFFENCES ARISING
FROM CRISIS-RELATED ACTIVITIES IN RELATION
TO THE BOUGAINVILLE
CONFLICT.
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I,
Silas Atopare G.G.M.G.,K.St.J., Governor General, by virtue of the powers
conferred by Section 344(3) of the Constitution and all
other powers me
enabling, acting with, and in accordance with, the advice of the National
Executive Council, hereby Declare that,
in respect of the immunity from
prosecution granted by Section 344(2) of the Constitution, in respect of certain
offences arising
from crisis-related activities in relation to the Bougainville
conflict: –
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(a) the classes of offences to which the immunity is to apply are as set out in the Schedule hereto; and |
(b) the crisis-related activities which qualify offences for the immunity are activities: – |
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(i)
in pursuit of the objectives of any of the parties to the conflict including,
but not limited to, the ordering and or carrying
out activities in the course of
armed conflict or against a person believed to be a member or supporter of one
of the parties to
the conflict; or
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(ii) relating to the self-defence of an individual, family, group or party; or |
(iii) in defence of the community, public order and/or justice where normal constitutional processes could not be applied; or |
(iv) involving non-compliance with regulatory, licensing or requirements where compliance was impracticable on account of the crisis; and |
(c) the immunity shall apply in respect of offences committed during the period commencing 1st October, 1988 and ending: – |
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(i)
in respect of offences other than: –
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(A)
those committed in activities referred to in Paragraph (b)(iv);
and
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(B)
those relating to illegal possession, ownership and control of
firearms,
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on
30th August, 2001; and
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(ii) in respect of offences committed in activities referred to in Paragraph (b)(iv) above – on the date on which compliance becomes practicable or on the date of establishment of the autonomous Bougainville Government, whichever shall first happen; and |
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(iii)
in respect of offences relating to the illegal possession, ownership and control
of firearms – on the date of verification
by the Director of the United
Nations Observer Mission on Bougainville that the weapons to which the weapons
disposal agreement applies
are secured and contained under the supervision of
that Mission, or, in respect of persons in control of the weapons collected
pursuant
to the weapons disposal agreement, on the completion of stage 3 of that
agreement; and
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(d)
any person charged with an offence covered by this Declaration may, at any time
after being so charged, make application to the
Court for a declaration that the
offence with which he is charged is an offence to which the immunity applies,
and upon the hearing
of the application the onus of establishing that the
immunity does not apply shall be upon the prosecution.
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SCHEDULE
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Any
offence within Papua New Guinea jurisdiction specified
in: –
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(a) Part II (Offences against Public Order) of the Criminal Code (Chapter 262); and |
(b) Part III (Offences against the Administration of Law and Justice and against Public Authority) of the Criminal Code (Chapter 262); and |
(c) Divisions 1, 3, 4 and 5 of Part IV (Offences Injurious to the Public in General) of the Criminal Code (Chapter 262); and |
(d) Part V (Offences against the Person and Relating to Marriage and Parental Rights and Duties and against the Reputation of Individuals) of the Criminal Code (Chapter 262), excepting the offences specified in the following: – |
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(i)
Section 301 (Infanticide);
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(ii)
Section 312 (Killing unborn child);
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(iii)
Division 7 (Assaults on females; abduction);
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(iv) Division 9 (Bigamy and offences relating to parental rights and duties); and |
(e) Part VI (Offences relating to Property and Contracts) of the Criminal Code (Chapter 262); and |
(f) Part VII (Preparation to Commit Offences; Conspiracy; Accessories after the Fact) of the Criminal Code (Chapter 262); and |
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(g)
Summary Offences Act (Chapter 264); and
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(h)
any piece of legislation imposing regulatory, licensing or similar requirements
relating to crisis-related activities to which
Paragraph (b)(iv) of this
Declaration relates, to the extent that the offence is related to non-compliance
with the regulatory, licensing
or similar provisions; and
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(i)
any piece of legislation relating to the possession, control or use of firearms,
to the extent that the offence is related to
the illegal possession, control or
use of firearms.
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Dated
this 1st day of August, 2002
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SILAS
ATOPARE
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Governor-General.” |
SCHEDULE 7 – .
Section 193
NATIONAL CONSTITUTION PROVISIONS RELATING TO BOUGAINVILLE REFERENDUM.
“Division 7. – Bougainville Referendum. |
“338. REFERENDUM TO BE HELD. |
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(1)
Subject to this section, a Referendum on the future political status of
Bougainville shall be held in accordance with this Division.
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(2)
Subject to Subsection (7), the Referendum shall be held on a date agreed after
consultation by the Bougainville Government with
the National Government, which
date shall be not earlier than 10 years and, notwithstanding any other
provisions, not more than 15
years after the election of the first Bougainville
Government.
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(3)
The date referred to in Subsection (2) shall be determined after considering
whether –
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(a) weapons
have been disposed of in accordance with the Agreement; and
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(b) in
accordance with Subsection (4), it has been determined that the Bougainville
Government has been and is being conducted in accordance
with internationally
accepted standards of good governance.
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(4)
The question whether the Bougainville Government has been and is being conducted
in accordance with internationally accepted standards
of good governance shall
be determined in accordance with the review and the dispute resolution
procedure.
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(5)
For the purposes of Subsection (4), the internationally accepted standards of
good governance, as they are applicable and implemented
in the circumstances of
Bougainville and Papua New Guinea as a whole, include democracy, the opportunity
for participation by Bougainvilleans,
transparency, accountability, and respect
for human rights and the rule of law, including this Constitution.
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(6)
The National Government and the Bougainville Government shall co-operate in
ensuring progress towards achieving and maintaining
the standards referred to in
Subsection (5).
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(7)
The Referendum shall not be held where the Bougainville Government decides, in
accordance with the Bougainville Constitution,
after consultation with the
National Government, that the Referendum shall not be held.
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“339. THE QUESTION OR QUESTIONS TO BE PUT. |
The question or questions to be put at the Referendum – |
(a) shall be agreed to by the National Government and the Bougainville Government; and |
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(b)
shall be formulated to avoid a disputed or unclear result; and
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(c) shall include a choice of separate independence for Bougainville. |
“340. MANNER OF CONDUCTING REFERENDUM. |
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(1)
An Organic Law shall make provision for the manner in which the Referendum is to
be conducted and in particular shall make provision
for and in relation
to –
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(a) the
authorities to be jointly responsible for preparing for and conducting the
Referendum and for the arrangements whereby they shall
exercise joint authority;
and
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(b) electorates
and polling places; and
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(c) electoral
rolls, enrolment, objections to enrolment and appeals relating to enrolment;
and
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(d) postal
voting; and
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(e) polling
and scrutiny; and
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(f) interpreters;
and
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(g) offences;
and
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(h) polling
and scrutiny; and
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(i) communicating
the results of the Referendum to the National Government and to the Bougainville
Government; and
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(j) the
invitation of international observers to observe the conduct of the Referendum;
and
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(k) such
other matters as may be required effectively to conduct the
Referendum.
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(2) The Referendum may be held in conjunction with an election. |
“341. REFERENDUM TO BE FREE AND FAIR. |
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The
National Government and the Bougainville Government shall co-operate to ensure
that the Referendum is free and fair.
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“342. REFERENDUM RESULTS AND IMPLEMENTATION. |
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(1)
The National Government and the Bougainville Government shall consult over the
results of the Referendum.
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(2)
Subject to the consultation referred to in Subsection (1), the Minister
responsible for the Bougainville Referendum shall table
the results of the
Referendum in the National Parliament and the Speaker of the National Parliament
shall furnish to the Bougainville
Executive a copy of the minutes of the
relevant proceedings and any decision made in the National Parliament regarding
the Referendum.
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“343. RESOLUTION OF DIFFERENCES ON REFERENDUM. |
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Any
differences between the National Government and the Bougainville Government in
relation to the Referendum shall be resolved in
accordance with the dispute
resolution procedure.”
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SCHEDULE 8 – .
Section 205(2)
NATIONAL CONSTITUTION PROVISIONS ON INTERGOVERNMENTAL RELATIONS AND REVIEW.
“Division 6. – Intergovernmental Relations and Review. |
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“330
INTERPRETATION.
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In this Division unless the contrary intention appears – |
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“dispute”
means any disagreement between the National Government and the Bougainville
Government in relation to the autonomy
for Bougainville and the referendum for
Bougainville;
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“dispute
resolution procedure” means the dispute resolution procedure set out in
Section 333 (Joint Supervisory Body);
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“intergovernmental
relations” means relations between the National Government and the
Bougainville Government;
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“Joint
Supervisory Body” means the Joint Supervisory Body established by Section
332 (Joint Supervisory Body);
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“review”
means review under Section 337 (reviews).
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“331. PRINCIPLES OF INTERGOVERNMENTAL RELATIONS. |
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The
general principles of intergovernmental relations between the National
Government and the Bougainville Government are as
follows: –
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(a) that
the autonomy arrangements, having been agreed through consultation and
co-operation, should be implemented in like manner;
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(b) that
there be a procedure to avoid, minimize and resolve disputes;
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(c) that
the National Government has no power to withdraw powers from the Bougainville
Government or to suspend it.
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“332. JOINT SUPERVISORY BODY. |
(1) There is established a Joint Supervisory Body consisting of – |
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(a) not
less than two members appointed by the National Executive Council;
and
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(b) not
less than two members appointed by the Bougainville Executive.
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(2)
There shall be an equal number of members appointed under Subsection (1)(a) and
(b).
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(3)
The functions of the Joint Supervisory Body are –
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(c) to
oversee implementation of the Agreement and of this Part, in accordance with the
Agreement; and
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(d) to
provide a consultative forum at which consultation between the National
Government and the Bougainville Government and their agencies
can take
place.
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(4)
The Joint Supervisory Body shall have such powers as are necessary to enable it
to perform its functions under this Part and the
Agreement.
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(5)
The Joint Supervisory Body –
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(e) subject
to Paragraph (b), shall, at its first meeting, develop its own procedures and
fix the frequency of its meeting (which shall
be at least once in each year);
and
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(f) provide
that any of its members may put matters on an agenda of a meeting;
and
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(g) at
its first meeting elect one of the members under Subsection (1)(a) to be the
Chairman and at its second meeting elect one of the
members under Subsection
(1)(b) to be the Chairman and thereafter elect a Chairman from Subsection (1)(a)
and (b) in rotation.
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“333. DISPUTE RESOLUTION PROCEDURE. |
The dispute resolution procedure is as follows: – |
(a) subject to express provisions relating to consultation in this Part and the Agreement, the National Government and the Bougainville Government shall try to resolve a dispute by consultation |
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(i)
where appropriate, between the relevant agencies of each Government;
or
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(ii) where consultation under Subparagraph (i) is not practicable or successful, through the Joint Supervisory Body; |
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(b)
where a dispute cannot be resolved by consultation under Paragraph (a), it shall
be referred for mediation and arbitration under
Section 334 (mediation and
arbitration), unless otherwise agreed by the National Government and the
Bougainville Government;
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(c) where a dispute cannot be resolved under Paragraph (a) or (b), or where the parties otherwise agree it may be submitted to the jurisdiction of the courts; |
(d) where a dispute involves a point of law, that point of law may be submitted to the jurisdiction of the courts without application of Paragraph (a) or (b). |
“334. MEDIATION AND ARBITRATION. |
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(1)
Where a dispute proceeds to arbitration, the National Government and the
Bougainville Government shall agree on the Mediator or
Arbitrator.
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(2)
The Mediator or Arbitrator shall determine procedures to be followed in the
initial consideration of a dispute referred to him
and shall determine whether a
dispute is or is not suitable for mediation or arbitration.
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(4)
Where the Mediator or Arbitrator determines that a dispute is not suitable for
arbitration or mediation, he shall issue to each
of the parties to the dispute a
certificate to that effect.
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(5)
Where the mediation or arbitration proceeds, the Mediator or Arbitrator shall
determine the procedures to be followed.
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“335. DISPUTE RESOLUTION IN THE COURTS. |
The Courts shall have jurisdiction in a dispute – |
(a) in accordance with Section 333 (d) (dispute resolution procedure), where a dispute involves a point of law; and |
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(b)
where the parties so agree; and
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(c) where the mediation or arbitration procedure fails to resolve the dispute and one or other party wishes to take the matter to Court; and |
(d) prescribed as a dispute in relation to which the Courts have jurisdiction. |
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“336.
PANEL OF PERSONS WITH APPROPRIATE EXPERTISE.
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(1)
Subject to Subsection (2), at any stage in the dispute resolution procedure, the
parties may agree to appoint a panel of persons
with expertise appropriate to
the matter in dispute.
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(2)
Where a Mediator or Arbitrator has been appointed in respect of a dispute, his
consent to the appointment of a panel under Subsection
(1) shall be
sought.
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“337. REVIEWS. |
(1) The National Government and the Bougainville Government – |
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(a) shall
meet as close as is practicable to the fifth anniversary of the establishment of
the Bougainville Government and every five
years thereafter, jointly to review
the autonomy arrangements; and
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(b) may
agree to additional reviews of the autonomy arrangements at any time;
and
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(c) shall
present a report of each review under Paragraph (a) or (b) to the National
Parliament and to the Bougainville Legislature.
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(2)
A review under Subsection (1) of the autonomy arrangements shall follow and
consider separate reviews by independent experts of
particular aspects,
including –
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(d) the
financial arrangements – grants, taxes and progress towards fiscal
self-reliance; and
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(e) the
Bougainville Government Services and other aspects of public sector
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