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The Constitution of the Autonomous Region of Bougainville 2004

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The Constitution of the Autonomous Region of Bougainville 2004

The Constitution of the Autonomous Region of Bougainville 2004.

ARRANGEMENT OF SECTIONS.

Preamble

 

PART 1 – Bougainville.

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.

 

PART 2 – Schedules repeating certain provisions of National Constitutional Laws.

10.       Schedules repeating certain provisions of National Constitutional Laws.

 

PART 3 – Bougainville Objectives and Directive.

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.

 

PART 4 – Structure of Government.

 

Division 1 – General.

 

40.       Structure and Levels of Government.

Division 2 – Autonomous Bougainville 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.

Division 3 – Other levels of formal Government.

49.       Other Levels of Formal Government.

50.       Regional Government.

Division 4 – Traditional Systems of Government.

51.       Traditional Systems of Government.

52.       Advisory Body.

 

PART 5 – The Bougainville Legislature.

Division 1 – General.

53.       Bougainville Legislature.

54.       Exercise of Legislature.

 

Division 2 – House of Representatives.

 

55.       Establishment and Composition of the house of representatives.

56.       Qualifications for and disqualifications from election.

 “appeal”

 “free pardon”

 “statutory period allowed for appeals”

57.       Normal Term of Office.

58.       Recall of Member of the House of representatives.

 

Division 3 – The Speaker and the Deputy Speaker.

 

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.

 

Division 4 – General Law-making powers of the House of Representatives.

 

65.       General Law-making powers.

66.       Certification as to making of Laws, etc.,.

67.       Right to Introduce New Laws.

 

Division 5 – Procedures, Privileges, etc., of the House of Representatives.

 

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.

 

PART 6 – The Bougainville Executive.

Division 1 – The Executive Power.

 

79.       Exercise of the Executive Power.

Division 2 – Bougainville Executive Council.

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.

 

Division 3 – The President.

 

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.

 

Division 4 – Vice President.

 

95.       Office of Vice-President.

96.       Appointment of Vice President.

97.       Assumption of Office.

98.       Functions of the Vice-President.

 

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.

101.     Dismissal of Members of the Bougainville Executive Council.

 

PART 7 – Bougainville Senior Appointments Committee and Appointments Generally.

102.     Bougainville Senior Appointments Committee.

103.     Part time Appointments.

 

PART 8 – Constituencies and Elections.

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.

 

PART 9 – Administration of Justice.

Division 1 – General.

112.     Bougainville Courts.

113.     The Law Officers of Bougainville.

114.     Exercise of the Judicial Power.

115.     Alternative Dispute Resolution.

 

Division 2 – Bougainville High Court.

 

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.

 

Division 3 – Appointment etc., of Judges of the Bougainville High Court.

 

121.     Bougainville Judicial Appointments Committee.

122.     Qualification.

123.     Appointment of Chief Justice of Bougainville.

124.     Appointment of Other Judges.

125.     Seniority of Judges.

 

Division 4 – Other Courts.

 

126.     Establishment of Other Courts.

127.     Head of Other Bougainville Courts.

 

Division 5 – The Bougainville Public Prosecutor and the Bougainville Public Solicitor.

 

128.     Bougainville Public Prosecutor and Bougainville Public Solicitor.

129.     Functions of the Bougainville Public Prosecutor and the Bougainville Public Solicitor.

 

Division 6 – Removal from Office of Senior Judicial and Legal Office-holders.

 

130.     Removal from Office of Chief Justice of Bougainville, etc.,.

131.     Procedures for Removal.

132.     Constitution of Tribunals, etc.,.

133.     Suspension.

 

Division 7 – Miscellaneous.

 

134.     Rules of Court.

135.     Lack of Procedural Provision.

136.     Juries and Assessors.

137.     Reports of Bougainville Judges.

 

PART 10 – Bougainville Government Services.

Division 1 – Introductory.

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.,.

 

Division 2 – Bougainville Public Services Commission.

 

142.     Establishment of the Bougainville Public Services Commission.

143.     Functions of the Commission.

144.     Independence of the Commission.

145.     Personnel Matters.

 

Division 3 – Bougainville Public Service .

 

146.     Bougainville Public Service.

147.     Head of Bougainville Public Service.

 

Division 4 – Bougainville Police Service.

 

148.     Bougainville Police Service.

149.     Chief of Bougainville Police.

150.     Further provisions relating to Bougainville Police Service.

 

Division 5 – Bougainville Correctional Service.

 

151.     Bougainville Correctional Service.

152.     Chief of the Bougainville Correctional Service.

 

PART 11 – Finances and Financial Management and Control.

Division 1 – General.

153.     General principles relating to finances and financial management.

 

Division 2 – Outline of Finances of Autonomous Bougainville Government and Finance Administration.

 

154.     Outline of Finances of Autonomous Bougainville Government and Finance Administration.

 

Division 3 – House of Representatives and Finance.

 

155.     Financial responsibility of the House of Representatives.

156.     Executive Initiative.

157.     Revenue and Expenditure without prior approval.

 

Division 4 – Bougainville Auditor General.

 

158.     Establishment of office of Bougainville Auditor-General.

159.     Functions of the Bougainville Auditor-General.

 

Division 5 – Public Accounts Committee.

 

160.     Establishment of the Public Accounts Committee.

161.     Functions of the Committee.

 

Division 6 – Bougainville Salaries and Remuneration Commission.

 

162.     The Bougainville Salaries and Remuneration Commission.

163.     Functions, etc., of the Commission.

164.     Functions of National Salaries and Remuneration Commission.

 

PART 12 – The Bougainville Ombudsman.

165.     The Bougainville Ombudsman.

166.     Purposes of the Bougainville Ombudsman.

167.     Functions and Powers of the Bougainville Ombudsman.

168.     Reports by the Bougainville Ombudsman.

 

PART 13 – Leadership Code.

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.

 

PART 14 – Human Rights.

Division 1 – Rights.

178.     Basic rights.

179.     Additional Rights.

 

Division 2 – Qualifications on Rights.

 

180.     Qualifications on the qualified rights.

181.     Reasonably justifiable in a Democratic Society.

182.     Validity of emergency legislation.

 

Division 3 – Enforcement of Guaranteed Rights and Freedoms.

 

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.

 

PART 15 – Issues arising from the Bougainville conflict.

187.     Issues arising from the Bougainville conflict.

 

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.

190.     Removal from office of certain Bougainville Constitutional Office-Holders.

 

Division 3 – Bougainville Constitutional Institutions.

 

191.     Bougainville Constitutional Institutions.

 

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.

 

PART 18 – Consultation and Participation.

195.     Consultation through plebiscite.

196.     Participation in, and poll for, law making.

 

PART 19 – Emergency Procedures and Powers.

197.     Definitions.

 “Bougainville emergency legislation”

 “declaration of a Bougainville emergency”

 “declaration of a national emergency”

 “emergency”

 “period of declared Bougainville emergency”

 “period of declared emergency”

 “period of declared national emergency”

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.

 

PART 20 – Intergovernmental Relations and Review.

205.     Principles of Intergovernmental Relations, etc.

 

PART 21 – This Constitution.

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.

 

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.

218.     National Constitutional Regulations.

 

Division 2 – Alterations to this Constitution.

 

219.     Making of alterations to this Constitution.

 

PART 23 – Review of this Constitution, etc.

220.     Review of this Constitution, etc.

 

PART 24 – Miscellaneous.

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.

 

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.

229.     Interpretation.

 “first Bougainville general election”

 

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.

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.

Division 4 – Arrangements for the First Meeting of the House of Representatives.

239.     Calling of First Meeting of the House of Representatives.

240.     Executive Officer of the House of Representatives.

 

PART 26 – Other Interim Arrangements.

241.     Interim Arrangements in relation to Institutions, Offices, etc.

 

SCHEDULE 1 – Section 6 DECLARATION OF LOYALTY TO BOUGAINVILLE, ITS PEOPLES AND CONSTITUTION.

SCHEDULE 2 – Section 212(1) RULES FOR SHORTENING AND INTERPRETATION OF THIS CONSTITUTION.

SCHEDULE 3 – Section 1 BOUNDARIES OF BOUGAINVILLE PROVINCE SPECIFIED IN NATIONAL ORGANIC LAW ON PROVINCIAL BOUNDARIES.

SCHEDULE 4 – Section 42 NATIONAL CONSTITUTION PROVISIONS RELATING TO FUNCTIONS AND POWERS OF THE AUTONOMOUS BOUGAINVILLE GOVERNMENT.

SCHEDULE 5 – Sections 122 and 189 MATTERS RELATING TO BOUGAINVILLE CONSTITUTIONAL OFFICE-HOLDERS

SCHEDULE 6 – Section 187 IMMUNITY FROM PROSECUTION

SCHEDULE 7 – Section 193 NATIONAL CONSTITUTION PROVISIONS RELATING TO BOUGAINVILLE REFERENDUM.

SCHEDULE 8 – Section 205(2) NATIONAL CONSTITUTION PROVISIONS ON INTERGOVERNMENTAL RELATIONS AND REVIEW.

SCHEDULE 9 – Section 224 TRANSITIONAL PROVISIONS – PART VI OF ORGANIC LAW ON PEACE-BUILDING IN BOUGAINVILLE - AUTONOMOUS BOUGAINVILLE GOVERNMENT AND BOUGAINVILLE REFERENDUM.

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.


 

The Constitution of the Autonomous Region of Bougainville 2004,

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.

(1) Bougainville is made up of –

(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.

The government established for the Autonomous Region of Bougainville by this Constitution shall be known as the “Autonomous Bougainville Government”.

3.         Jurisdiction of the Autonomous Bougainville Government.

The Autonomous Bougainville Government has jurisdiction only over the Autonomous Region of Bougainville in accordance with this Constitution and the Bougainville Peace Agreement as implemented in Part XIV (Bougainville Government and Bougainville Referendum) of the National Constitution.

4.         Symbols of the Autonomous Region of Bougainville.

(1) A Bougainville law may make provision for and in respect of all or any of the following: –

(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.

(1) Subject to Subsection (2), a Bougainville law made by an absolute majority vote shall determine the location of the capital of the Autonomous Region of Bougainville.

(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.

(1) When a Bougainville law requires a Declaration of Loyalty to Bougainville to be made, it shall be in the form in Schedule 1 (Declaration of Loyalty to Bougainville) to this Constitution.

(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.

(1) A person –

(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.

(1) A Bougainvillean (and no other person) in accordance with this Constitution and Bougainville laws –

(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.

(1) A Bougainvillean has an obligation –

(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.

(1) The Schedules to this Constitution listed in Subsection (2) –

(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.

The provisions of this Part are non-justiciable.

12.       Implementation of Objectives.

(1) The Bougainville Objectives and Directive Principles set out in this Part shall guide the Autonomous Bougainville Government, all other levels of government formal and informal, Bougainville governmental bodies, all officers and employees of the foregoing, all people, organizations and other bodies and persons in Bougainville –

(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.

(1) The clan structure and customary leadership of Bougainvillean communities shall be recognized and strengthened.

(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.

(1) Government in Bougainville shall be based and structured on democratic principles which empower and encourage the active participation of all Bougainvilleans at all levels in their own governance both formal and customary.

(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.

(1) In order to achieve and maintain peace at all times, mediation, reconciliation and harmony shall at all times be pursued as means of resolving disputes, and the use of violence shall be avoided.

(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.

(1) The Autonomous Bougainville Government, all other levels of government, formal and informal, Bougainville governmental bodies, all officers and employees of the foregoing, all people in Bougainville, organizations and other bodies and persons shall work towards the promotion of unity, peace and stability in 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.

(1) The Autonomous Bougainville Government and all people in Bougainville shall display and promote respect for the 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.

(1) The Autonomous Bougainville Government shall guarantee and respect institutions which are charged by this Constitution with the responsibility for protecting and promoting human rights by providing them with adequate resources to function effectively.

(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.

There shall be fair representation of women and marginalized groups on all constitutional and other bodies.

20.       Welfare of Windows, Children, Orphans, the Aged and the Disabled.

The customary practices of provision of care for widows, children, orphans, the aged and the disabled shall be encouraged.

21.       Provision of adequate resources for Government.

The distribution of powers as well as checks and balances provided for in this Constitution among various institutions of Government shall be supported through the provision of adequate resources for their effective functioning at all levels.

22.       General social and economic objectives.

The Autonomous Bougainville Government shall endeavour to fulfil the fundamental rights of all people in Bougainville to social justice and economic development and shall, in particular, ensure that –

(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.

(1) The laws and policies of Bougainville shall be directed towards the recognition of customary rights of the People of Bougainville in relation to the land and the sea and natural, mineral and oil resources of Bougainville and any law relating to the development of such resources shall take that into account.

(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.

(1) In order to facilitate development, private initiative and self-reliance shall be encouraged.

(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.

In recognition of the shortage of the trained personnel who will be needed to develop Bougainville and implement autonomy, the Autonomous Bougainville Government shall encourage human resource development.

26.       Transport Infrastructure.

In respect that Bougainville is made up of diverse terrain and many island communities, the Autonomous Bougainville Government shall, as a priority, facilitate the development of the transport infrastructure of Bougainville so as to give all Bougainvilleans, wherever they may live, ready access to transport for themselves, their produce and other goods.

27.       The Environment and Conservation.

(1) The Autonomous Bougainville Government and all other levels of government, formal and informal, shall promote sustainable development and public awareness of the need to conserve and manage land, air, sea and water resources in a balanced and sustainable manner for the present and future generations.

(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.

The role and welfare of women in traditional and modern Bougainville society shall be recognized and encouraged and shall be developed to take account of changing circumstances.

29.       Children and Youth as the future of Bougainville.

The Autonomous Bougainville Government shall recognize children and youth as the future of Bougainville, and shall develop policies to ensure the integration of children and youth more fully into their communities and to groom them for their future role in Bougainville society.

30.       Recognition of the dignity of persons with disabilities.

The right of persons with disabilities to respect and human dignity shall be recognized and protected.

31.       Music, the arts and sports.

The Autonomous Bougainville Government shall promote music, the arts and sports (including traditional sports and games) for all people in Bougainville.

32.       Education Objectives.

(1) The Autonomous Bougainville Government shall strive to achieve –

(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.

The Autonomous Bougainville Government shall take all practical measures –

(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.

The Autonomous Bougainville Government shall make the fight against HIV/AIDS and its threat to the clans and to the future of Bougainville a major priority.

35.       Partnership with Churches, Local Non-Government Organisations and other organisations.

(1) The Autonomous Bougainville Government should acknowledge the harmonious partnership developed in the past with the three main churches in Bougainville in the development and provision of services and should strive to ensure partnership with both them and other churches and local non-government organizations and other organizations in the future development and provision of services to all people in Bougainville.

(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.

The Autonomous Bougainville Government shall institute an effective machinery for dealing with any emergency or hazard or disaster arising out of natural calamities or any situation resulting in general displacement of people or serious disruption of normal life.

37.       Cultural Objectives.

(1) Customary values and practices which enhance the dignity and well-being of Bougainvilleans shall be recognized, promoted and preserved.

(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.

(1) All public offices shall be held in trust for the People.

(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.

The Autonomous Bougainville Government shall recognize and promote the protection of the rights of workers and employees.

 

PART 4. – Structure of Government.

Division 1. General.

40.       Structure and Levels of Government.

Government in Bougainville shall consist of –

(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.

(1) Until any change in the status of Bougainville that may occur following the Bougainville Referendum, in accordance with and subject to –

(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.

(1) The functions and powers of the Autonomous Bougainville Government are as contained in the Bougainville Peace Agreement as implemented in Part XIV (Bougainville Government and Bougainville Referendum) of the National Constitution and the main functions and powers are set out in full in Schedule 4 (National Constitution provisions relating to functions and powers of the Autonomous Bougainville Government) to this Constitution.

(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.

(1) Before –

(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.

(1) The Autonomous Bougainville Government shall, as soon as is practicable, develop a land policy for Bougainville and in this regard shall –

(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.

(1) The Autonomous Bougainville Government may develop a criminal law policy for Bougainville and in this regard shall, as far as is practicable

(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.

Where the Autonomous Bougainville Government decides to arrange for: –

(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.

The Autonomous Bougainville Government may exercise its powers in relation to fisheries under Paragraphs 85, 86, 87 and 88 of the Bougainville Peace Agreement and accordingly may –

(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.

(1) Subject to Subsection (2), the underlying law of Papua New Guinea as at the date of the coming into operation of this Constitution shall be the underlying law of the Autonomous Region of Bougainville.

(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.

(1) The Autonomous Bougainville Government shall develop a level or levels of formal government, below the level of the Autonomous Bougainville Government, and this Constitution or further amendment of this Constitution or Bougainville laws shall make provision for all aspects of such level or 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.

(1) The Autonomous Bougainville Government shall, when it considers it to be financially practicable and possible, develop, in accordance with this Division, a level of Regional Government for each of the following Regions of Bougainville: –

(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.

(1) Traditional systems of government and the roles and responsibilities of traditional chiefs and other traditional leaders and of the clan system, as custodians of custom and tradition and in matters relating to the governance of their communities generally, shall be recognized, wherever practicable and possible, by all levels of government in Bougainville.

(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.

(1) An Advisory Body, consisting of representatives of traditional chiefs and other traditional leaders may be established by a Bougainville law at a date after the coming into operation of this Constitution.

(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.

The Bougainville Legislature shall comprise and be known as the House of Representatives as established under Section 55 (establishment and composition of the House of Representatives).

54.       Exercise of Legislature.

(1) The legislative power of the Autonomous Bougainville Government is vested in the House of Representatives.

(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.

(1) The House of Representatives is established.

(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.

(1) A member of the House of Representatives must be not less than 25 years of age.

(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.

(1) A member of the House of Representatives takes office on the day immediately following the day fixed for the return of the writ for the election in his constituency.

(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.

(1) A member of the House of Representatives, other than the Speaker, may be recalled in accordance with this section.

(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.

There shall be offices of Speaker and Deputy Speaker of the House of Representatives.

60.       Speaker.

(1) The Speaker shall be a person who –

(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.

The office of Speaker becomes vacant –

(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.

The Deputy Speaker shall be a member of the House of Representatives and shall be elected and may be removed from the Office of Deputy Speaker by vote of the House of Representatives in accordance with the Standing Orders.

63.       Functions of the Deputy Speaker and Deputy Speaker.

(1) The Speaker is responsible, subject to and in accordance with this Constitution, the Bougainville laws and the Standing Orders, for –

(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.

The Speaker shall not vote in the House of Representatives except, in his discretion –

(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.

(1) Subject to this Constitution and the Bougainville laws, the House of Representatives may make laws for the peace, order and good government of the Autonomous Region of Bougainville.

(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.,.

(1) The Speaker shall certify under the Bougainville Seal any law that has been made by the House of Representatives.

(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.

(1) Subject to Section 155 (financial responsibility of the House of Representatives), any member of the House of Representatives is entitled to introduce into the House of Representatives, in accordance with, and subject to any reasonable restrictions contained in the Standing Orders, a petition, question, bill, resolution, motion or other matter.

(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.

(1) The House of Representatives shall be called to meet not more than seven days after the day fixed for the return of writs for a Bougainville general election.

(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.

(1) The quorum at a meeting of the House of Representatives shall be one half of the number of the seats in  the House of Representatives at the time.

(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.

Except as is otherwise provided by this Constitution, a Bougainville law or the Standing Orders and subject to Section 64 (voting by the Speaker), all questions before a meeting of the House of Representatives shall be determined by a majority of the votes of the members of the House of Representatives present and voting.

71.       Committees.

(1) There shall be in the House of Representatives –

(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.

The House of Representatives may make Standing Orders and other rules and orders in respect of the order and conduct of its business and proceedings of its committees, and such matters as by law are required or permitted to be prescribed or provided for by Standing Orders.

73.       Privileges, etc., of the House of Representatives.

(1) The powers (other than legislative powers), privileges and immunities of the House of Representatives and of its members and committees are as prescribed by or under this section and by or under any other provision of this Constitution.

(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.

(1) Until any change in the status of Bougainville that may occur following the Bougainville Referendum, the provisions of this section apply where, in accordance with Section 293 (international obligation etc., of the State in respect of the powers and functions of the Bougainville Government) of the National Constitution, the National Government –

(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.

The question whether the procedures prescribed by the House of Representatives or its committees have been complied with, is non-justiciable, and a certificate by the Speaker under Section 66 (certification as to making of laws) is conclusive as to the matter required to be set out in it.

76.       Questions as to Membership.

(1) Subject to Subsection (2), the Bougainville High 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.

(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.

Where a person who has purported to sit or vote as a member of the House of Representatives at a meeting of the House of Representatives or of a committee 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.

(1) There shall be an office of Clerk of the House of Representatives who shall be appointed by the Bougainville Senior Appointments Committee, which for the purpose shall include two persons appointed by the National Executive Council.

(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.

(1) Subject to this Constitution, the executive power of the Autonomous Bougainville Government is vested in the Bougainville Executive Council.

(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.

(1) Subject to Section 82 (caretaker Bougainville Executive Council), the Bougainville Executive Council shall consist of –

(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.

(1) This section applies in relation to the appointment of the members of the Bougainville Executive Council referred to in Section 80(1)(d) (membership of the Bougainville Executive Council).

(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.

During any period following a Bougainville general election, before appointments to the Bougainville Executive Council are made, the powers and functions of the Bougainville Executive Council vest in a caretaker Bougainville Executive Council consisting of –

(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.

(1) Members of the Bougainville Executive Council referred to in Section 80(1)(f) (membership of the Bougainville Executive Council) shall be appointed by the President.

(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.

Subject to Section 6 (Declaration of Loyalty to Bougainville), a member of the Bougainville Executive Council, (other than the Vice President for whom special provision is made by this Constitution) appointed by the President under Section 80(1)(c) (membership of the Bougainville Executive Council) or 81(3) or 81(5)(a) or (b) or (representation of regions) or 83 (appointment of other members) takes office on the day on which the President notifies the Speaker, in writing, of the appointment.

85.       Responsibilities.

(1) The Bougainville Executive Council, and the members of the Council, have such powers, functions, duties and responsibilities in relation to the executive functions of the Autonomous Bougainville Government as are conferred or imposed by or under this Constitution or a Bougainville law, or as are delegated to the Council.

(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.

(1) Subject to this Constitution, the Bougainville Executive Council may determine its own procedures (including, subject to any Bougainville law, its quorum).

(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 Bougainville law may make provision for the delegation –

(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.

An office of President of the Autonomous Region of Bougainville is hereby established.

89.       Eelction of President.

(1) The President shall be elected by the electors of the Autonomous Region of Bougainville.

(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.

(1) Where the office of President becomes vacant under Section 94(2) (vacation of office 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.

(1) Until a Bougainville law made by an absolute majority vote provides otherwise, a President must be not less than 40 years of age.

(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.

Subject to Section 6 (Declaration of Loyalty to Bougainville), a President who is elected at the time of a Bougainville general election takes office on the day after the day fixed for the return of the writ in his election.

93.       Functions of the President.

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.

(1) Subject to Subsection (2), the President ceases to hold office on the assumption of office by a new President following an election of President under Section 89 (election of President) or Section 90 (special election 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.

An office of Vice-President of the Autonomous Region of Bougainville is hereby established.

96.       Appointment of Vice President.

(1) The President shall appoint a Vice-President from among the members of the House of Representatives from one of the Regions (North, Central and South) other than the Region from which the President himself comes.

(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.

Subject to Section 6 (Declaration of Loyalty to Bougainville), a Vice-President takes office on the day after the day on which he is appointed under Section 96 (appointment of Vice-President).

98.       Functions of the Vice-President.

(1) In addition to his powers, functions, duties and responsibilities under any Bougainville law, the Vice-President has and shall exercise all the rights, privileges, powers, functions, duties and responsibilities of the 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.

In this Division, “member of the Bougainville Executive Council to whom this Division applies” means a member of the Bougainville Executive Council other than the President.

100.     Vacation of Office of Members of the Bougainville Executive Council.

(1) The Office of a member of the Bougainville Executive Council to whom this Division applies becomes vacant –

(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.

(1) A member of the Bougainville Executive Council referred to in Section 80(1)(c), (d), (e) or (f) (membership of the Bougainville Executive Council) may be dismissed from the office of member of the Bougainville Executive Council by the President.

(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.

(1) There is established a Bougainville Senior Appointments Committee consisting of –

(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.

(1) The House of Representatives may, through legislation at the time of establishing an office (including a Constitutional Office) under this Constitution, or at any time thereafter, determine that the holder of the office shall or may be appointed on a part-time basis.

(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.

(1) There shall be a Bougainville Boundaries Commissioner, who shall be responsible, in accordance with a Bougainville law made by an absolute majority vote, for recommending to the House of Representatives from time to time for elections after the first general election of President and of members of the House of Representatives –

(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.

(1) The 33 single member constituencies, being the number of constituencies for the first general election of members of the House of Representatives provided for by Section 55(2)(b)(i) (establishment and composition of the House of Representatives) and thereafter until altered by a determination under Subsection (7), shall be allocated as follows: –

(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.

(1) There shall be a Bougainville Electoral Commissioner who shall be appointed for a period of five years by the Bougainville Senior Appointments Committee, which for the purpose shall include two persons appointed by the Electoral Commission Appointments Committee established under the Organic Law on National and Local-level Government Elections.

(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.

(1) A Bougainville general election of the President and of members of the House of Representatives, shall be held –

(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.

(1) If the seat of a member of the House of Representatives becomes vacant otherwise than by Section 57(2)(a) (normal term of office) a by-election shall be held to fill the vacancy unless the vacancy occurs –

(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.

Elections of the President and of the members of the House of Representatives shall be –

(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.

(1) Subject to Subsection (2), a person who –

(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.

(1) A Bougainville law made by an absolute majority vote shall –

(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.

(1) The Bougainville Courts consist of –

(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.

(1) At such time as is considered suitable by the House of Representatives, any one or more of the following may be appointed to be the Law Officer or the Law Officers of the Autonomous Region 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.

The judicial powers of the Autonomous Bougainville Government are vested in the Bougainville Courts and in interpreting the law all judges shall give paramount consideration to the dispensation of justice.

115.     Alternative Dispute Resolution.

(1) Subject to Subsection (3), a Bougainville law may make provision for –

(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.

(1) At such time as is considered by the House of Representatives to be suitable, a Bougainville High Court shall be established.

(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 .

(1) The Bougainville High Court shall consist of –

(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.

(1) A person qualified under Section 122 (qualifications) for appointment may, subject to Subsection (2), be appointed to be an acting Judge of the Bougainville High Court –

(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.

(1) Subject to this Constitution and to the Bougainville Peace Agreement as implemented in Part XIV (Bougainville Government and Bougainville Referendum) of the National Constitution, the Bougainville High Court is a court of unlimited jurisdiction.

(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.

A person has a right to appeal from the Bougainville High Court to the Supreme Court as the final court of appeal.

 

Division 3. Appointment etc., of Judges of the Bougainville High Court.

121.     Bougainville Judicial Appointments Committee.

(1) There is established a Bougainville Judicial Appointments Committee which, subject to Subsections (2) and (3), shall consist of –

(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.

The qualifications for appointment as the Chief Justice of Bougainville or as a Judge of the Bougainville High Court are as specified in Schedule 5 (matters relating to Bougainville Constitutional Office-holders) to this Constitution.

123.     Appointment of Chief Justice of Bougainville.

(1) Subject to Subsection (2), at the time of establishment of the Bougainville High Court, an office of the Chief Justice of Bougainville shall be established.

(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.

(1) The other Bougainville Judges (other than the Chief Justice) shall be appointed by the Bougainville Judicial Appointments Committee.

(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.

A Bougainville law shall make provision for the determination of the seniority of Bougainville Judges.

 

Division 4. Other Courts.

126.     Establishment of Other Courts.

(1) Subject to this Constitution, Bougainville laws may establish, or provide for the establishment of –

(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.

(1) At such time as is considered suitable by the House of Representatives, an office of Head of other Bougainville Courts shall be established.

(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.

(1) The House of Representatives may –

(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.

(1) The functions of the Bougainville Public Prosecutor  are –

(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.,.

The Chief Justice of Bougainville, a Bougainville Judge, the Bougainville Public Prosecutor, the Bougainville Public Solicitor or the Head of other Bougainville Courts may be removed from office only –

(a)        in accordance with this Division;  or

(b)        in accordance with Part 13 (Leadership Code).

131.     Procedures for Removal.

Where the Bougainville Judicial Appointments Committee is satisfied that the Chief Justice of Bougainville, a Bougainville Judge, the Bougainville Public Prosecutor, the Bougainville Public Solicitor or the Head of other Bougainville Courts, during his tenure of office –

(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.,.

(1) A tribunal for the purposes of Section 131 (procedures for removal) shall consist of a Chairman and two other members, each of whom must be –

(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.

(1) Where a question has been referred to a tribunal under Section 131 (procedures for removal), the Bougainville Judicial Appointments Committee may suspend the person concerned from office pending the report of the tribunal, and may remove the suspension at any time.

(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.

(1) The Judges of the Bougainville High Court may make Rules of Court, not inconsistent with this Constitution or a Bougainville law, with respect to the practice and procedure in and in relation to the Bougainville High 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.

If in the circumstances of a particular case before the Bougainville High Court or any other Bougainville court, no provision, or no adequate provision, is made in respect of a matter of procedure or practice, the Court shall give ad hoc directions to remedy the lack or inadequacy.

136.     Juries and Assessors.

A Bougainville law may provide for a system of –

(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.

(1) The Bougainville Judges shall, at least once in each period of 12 months, at such times as are fixed by or under a Bougainville law, give to the Minister responsible for Bougainville Courts, for presentation to the House of Representatives, a report on the work of the Bougainville Courts, with such recommendations as to improvements as they consider proper.

(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.

(1) The House of Representatives may establish, as and when it considers it suitable in each case, the following 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.

All the Bougainville Government Services shall be civilian services and shall be subject at all times to ultimate civilian control.

140.     Responsibility of Heads of Bougainville Government Services to Bougainville Executive Council.

(1) The Head of each Bougainville Government Service shall be responsible to the Bougainville Executive Council for –

(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 member of a Bougainville Government Service shall, before entering upon the duties of or exercising any of the powers of his office, make –

(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.

(1) At such time as is considered suitable by the House of Representatives, a Bougainville Public Services Commission shall be established.

(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.

(1) The Bougainville Public Services Commission shall, in accordance with a Bougainville law, be responsible for –

(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.

The Bougainville Public Services Commission is not subject to direction or control by any person or authority when carrying out its function under Section 143(1)(a) (functions of the Commission).

145.     Personnel Matters.

In this Division, “personnel matters” means decisions and other service matters concerning an individual whether in relation to his appointment, promotion, demotion, transfer, suspension, disciplining or cessation or termination of employment (except cessation or termination at the end of his normal period of employment as determined in accordance with law), or otherwise.

 

Division 3. Bougainville Public Service .

146.     Bougainville Public Service.

Subject to this Constitution, Bougainville laws shall make provision for all matters relating to the Bougainville Public Service and in particular, for and in respect of –

(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.

(1) At such time as is considered suitable by the House of Representatives an office of Head of the Bougainville Public Service shall be established.

(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.

(1) The primary functions of the Bougainville Police Service are, in accordance with this Constitution, the Bougainville Peace Agreement as implemented in Part XIV (Bougainville Government and Bougainville Referendum) of the National Constitution and Bougainville laws –

(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.

(1) At such time as is considered suitable by the House of Representatives, there shall be established an office of Head of the Bougainville Police Service, the holder of which office shall be called the 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.

Subject to this Constitution, Bougainville laws shall make provision for all matters relating to the Bougainville Police Service and in particular relating to –

(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.

(1) The primary functions of the Bougainville Correctional Service are the supervision and administration of correctional institutions and the reduction in the need for custodial detention.

(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.

(1) At such time as is considered suitable by the House of Representatives, there shall be established an office of Head of the Bougainville Correctional Service, the holder of which office shall be called the 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.

(1) In the use of its finances and in the management and control of its finances, the Autonomous Bougainville Government shall –

(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.

(1) The finances of the Autonomous Bougainville Government, as contained in the Bougainville Peace Agreement as implemented in Part XIV (Bougainville Government and Bougainville Referendum) of the National Constitution, shall consist of –

(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.

(1) The raising and expenditure of finance by the Autonomous Bougainville Government, including the imposition of taxation and the raising of loans, is subject to authorization and control by the House of Representatives, and shall be regulated by a Bougainville law, which may also provide for financial management.

(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.

(1) The House of Representatives shall not provide for the imposition of taxation, the raising of loans or the expenditure of public moneys of Bougainville except on the recommendation of the Bougainville Executive Council.

(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.

(1) If at the beginning of the fiscal year the House of Representatives has not made provision for public expenditure by the Autonomous Bougainville Government, the Autonomous Bougainville Government may, without authorization other than this section but in accordance with a Bougainville law, expend amounts appropriated for expenditure out of the Bougainville Consolidated Revenue Fund for the purpose not exceeding in total one third of its budgeted expenditure during the immediately preceding fiscal year.

(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.

(1) At such time as is considered by the House of Representatives to be suitable, an office of Bougainville Auditor-General shall be established.

(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.

(1) The primary functions of the Bougainville Auditor-General are to inspect and audit, and to report at least once in each fiscal year to the House of Representatives on –

(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.

There shall be a Public Accounts Committee of the House of Representatives.

161.     Functions of the Committee.

(1) The primary function of the Public Accounts Committee is, in accordance with a Bougainville law, to examine and report to the House of Representatives on the public accounts of Bougainville and on the control of and on transactions concerning, the public moneys and property of Bougainville.

(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.

(1) The Autonomous Bougainville Government may, at such time as is considered by the House of Representatives to be suitable, establish a 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.

(1) The Bougainville Salaries and Remuneration Commission shall be responsible for recommending to the House of Representatives from time to time, at intervals determined by the Commission, the salaries, allowances and benefits, financial or otherwise (including pensions or retirement benefits if they are not otherwise provided for by law) of all –

(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.

(1) Subject to Subsection (2), until the establishment of the Bougainville Salaries and Remuneration Commission under Section 162(1) (the Bougainville Salaries and Remuneration Commission), the Salaries and Remuneration Commission established by Section 216A (Salaries and Remuneration Commission) of the National Constitution will continue to be responsible for recommending to the House of Representatives the salaries, allowances and benefits, financial or otherwise, (including pensions and retirement benefits if they are not otherwise provided for by law) of all persons referred to in Section 163(1) (functions of the 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.

(1) At such time as is considered by the House of Representatives to be suitable, there shall be established an office of 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.

The purposes of the establishment of the office of Bougainville Ombudsman are –

(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.

The Bougainville Ombudsman has such powers and functions, as set out in a Bougainville law made by an absolute majority vote, as are necessary to enable him to achieve the purposes specified in Section 166 (purposes of the Bougainville Ombudsman).

168.     Reports by the Bougainville Ombudsman.

(1) The Bougainville Ombudsman shall, at least once in each period of 12 months, at such time as is fixed by a Bougainville law, give to the President, for presentation to the House of Representatives, a report on the functions and workings of the Bougainville Ombudsman, with such recommendations as to improvement as the Bougainville Ombudsman thinks proper.

(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.

(1) This Part shall apply on and from the date of the establishment of the office of Bougainville Ombudsman under Section 165(1) (The Bougainville Ombudsman) and until that time the provisions of Division III.2 (Leadership Code) of the National Constitution shall apply in accordance with the Bougainville Peace Agreement as implemented in Part XIV (Bougainville Government and Bougainville Referendum) of the National Constitution.

(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.

A person to whom this Part applies has a duty to conduct himself in such a way, in his public or official life and in his private life and in associations with other persons, as to comply with the long-established standards of customary leadership in Bougainville, including trustworthiness, transparency, and acting in the interests of, and as custodian of wealth for the People, and not for personal gain.

171.     Other responsibilities of office.

A person to whom this Part applies has a duty to conduct himself in such a way, both in his public or official life and in his private life and in associations with other persons, as –

(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.

(1) In particular, a person to whom this Part applies shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by Section 170 (customary standards of leadership) and 171 (other 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.

(1) For the purpose of this Part, a Bougainville law made by an absolute majority vote –

(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.

(1) Where the Bougainville Ombudsman is satisfied that there is a prima facie case that a person has been guilty of misconduct in office, he shall refer the matter to the Bougainville Public Prosecutor for prosecution before the Bougainville High Court.

(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.

(1) The investigation, prosecution and determination of cases of alleged or suspected misconduct in office may be initiated and conducted or continued, and penalties may be imposed, notwithstanding that the person, whose conduct in office while being a person to whom this Part applies is the subject of the investigation, prosecution or determination, no longer holds that office and such a person continues, for the purposes of this Part, to be a person to whom this Part applies.

(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.

(1) Subject to Subsection (2), a person who

(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.

Where the Bougainville Ombudsman, as a result of an investigation by him under this Part into a case of alleged or suspected misconduct, or in the course of carrying out his functions under Part 12 (The Bougainville Ombudsman), is satisfied that there is a prima facie case that there has been criminal conduct by the person to whom this Part applies in the case of an investigation under this Part, or in any other case, by any person, he may –

(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.

The basic rights set out in Division III.3 (Basic Rights) of the National Constitution apply in the Autonomous Region of Bougainville.

179.     Additional Rights.

Provision may be made in this Constitution at any time for the guarantee of rights and freedoms available to all citizens of Papua New Guinea in the Autonomous Region of Bougainville additional to the basic rights referred to in Section 178 (basic rights).

 

Division 2. Qualifications on Rights.

180.     Qualifications on the qualified rights.

(1) A Bougainville law which complies with the requirements of this section may make provision for the regulation or restriction of any of the following qualified rights set out in Subdivision III.3.C (qualified rights) of the National Constitution: –

(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.

(1) The question whether a Bougainville law is reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind is to be determined in the light of the circumstances applying at the time when a decision on the question is made.

(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.

Nothing in this Part invalidates Bougainville emergency legislation as defined in Part 19 (emergency procedures and powers) but nevertheless in so far as is consistent with its purposes and terms such legislation shall be interpreted and applied so as not to affect or reduce a right or freedom referred to in this Part to an extent that is more than is reasonably necessary to deal with the emergency concerned and 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.

 

Division 3. Enforcement of Guaranteed Rights and Freedoms.

183.     Enforcement of Guaranteed Rights and Freedoms.

(1) Human rights shall be protected by, and are enforceable in the Bougainville High Court, the Supreme Court or the National Court either on the initiative of the Court itself or on application by any person who has an interest in its protection or enforcement, or in the case of a person who is, in the opinion of the Court, unable fully and freely to exercise his rights under this section, by a person acting on his behalf, whether or not by his authority.

(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.

(1) This section is in addition to, and not in reduction of, Section 183 (enforcement of guaranteed rights and freedoms).

(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.

(1) There may be established by this Constitution a specialist human rights enforcement body with powers to –

(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.

In any provision of this Part relating to human rights abuses, the customary methods of dealing with such abuses should be utilized wherever possible and all Courts and the body referred to in Section 185 (human rights enforcement body) shall take account of any customary settlement of any alleged human rights enforcement matter before it.

 

PART 15. – Issues arising from the Bougainville conflict.

187.     Issues arising from the Bougainville conflict.

(1) The Bougainville Executive Council shall formulate a policy for –

(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.

This Part shall be read subject to any other provision of this Constitution relating to particular Bougainville Constitutional Office-holders or particular Bougainville Constitutional Institutions.

 

Division 2. Bougainville Constitutional Office-holders.

189.     Bougainville Constitutional Office-holders.

(1) The following are 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.

(1) This section does not apply to the Chief Justice of Bougainville, a Bougainville Judge or Acting Judge, the Bougainville Public Prosecutor, the Bougainville Public Solicitor or the Head of other Bougainville Courts for whom provision for removal from office is made in Part 9 (administration of justice).

(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.

(1) The Autonomous Bougainville Government may, after compliance with Section 43 (factors to be considered by Autonomous Bougainville Government before requesting a transfer of a function or power, etc.,), establish such other Bougainville Constitutional Institutions as it considers necessary or desirable to enable it to carry out its powers effectively.

(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.

Without limiting the generality of any other provision of this Constitution, it is the duty of the Autonomous Bougainville Government and of all Bougainville governmental bodies, and of all office-holders and institutions to ensure, as far as is within their legal powers, that all arrangements are made, staff and facilities provided and steps taken to enable, as far as reasonably may be, all Bougainville Constitutional Institutions and all Bougainville Constitutional Office-holders to perform their functions.

 

PART 17. – Bougainville Referendum.

193.     Bougainville Referendum.

The provisions of the Bougainville Peace Agreement, as implemented in Division XIV.7 (Bougainville Referendum) of the National Constitution relating to the referendum on the future political status of Bougainville are as set out in Schedule 7 (National Constitution provisions relating to Bougainville Referendum) to this Constitution.

194.     Procedure in relation to the Bougainville Referendum.

(1) The Bougainville Referendum shall be held except in accordance with a decision of the House of Representatives under this section.

(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.

(1) There may be established, by future amendment of this Constitution or by a Bougainville law made by an absolute majority vote, procedures for the conduct of plebiscites throughout Bougainville, or, subject to Subsection (2), a part or parts of Bougainville, on issues which are considered to be of major importance, other than issues relating to the independence of Bougainville.

(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.

(1) There may be established, by future amendment of this Constitution or by a Bougainville law made by an absolute majority vote, procedures –

(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.

In this Part –

“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.

In the event of the occurrence of an emergency, as defined in Paragraph (c) of the definition of “emergency” in Section 197 (definitions), the Autonomous Bougainville Government shall, where the circumstances of the emergency permit, endeavour to deal with the situation by utilization of measures (including traditional methods of mediation, compromise and reconciliation through the involvement of traditional chiefs and other traditional leaders) without the need to request a declaration of a national emergency.

199.     Declarations of emergency generally.

Until any change in the status of Bougainville that may occur following the Bougainville Referendum, declarations of emergency may be made as follows, in each case only where it is considered that an emergency exists or is about to come into being such that it is necessary that an emergency be declared and emergency powers invoked: –

(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 declaration of a Bougainville emergency may be made in respect of Bougainville or part of Bougainville by the Bougainville Executive Council and –

(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 request to the National Executive Council to advise the Head of State to declare a national emergency referred to in Section 199(b)(i) (declaration of emergency generally) to apply to Bougainville or part of Bougainville may be made –

(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.

(1) Where a declaration of national emergency referred to in Section 198(b)(i) (declaration of emergency generally) has been made, in circumstances to which the provisions of Section 323(1)(d) (declaration of national emergency in Bougainville) of the National Constitution relate, a request for the declaration to be revoked 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.

(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.

(1) Unless the House of Representatives is in session at the time of any declaration of emergency referred to in Section 199 (declarations of emergency generally) –

(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.

(1) Subject to this section, a Bougainville law made by an absolute majority vote shall make provision generally for the management and control of emergencies and in particular for –

(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.

(1) Until any change in the status of Bougainville that may occur following the Bougainville Referendum, the general principles of intergovernmental relations between the National Government and the Autonomous Bougainville Government are as follows: –

(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.

(1) Until any change in the status of Bougainville that may occur following the Bougainville Referendum, the National Constitution, National Constitutional Laws and National laws are valid and effective in Bougainville as provided in the Bougainville Peace Agreement as implemented in Part XIV (Peace - Building in Bougainville-Autonomous Bougainville Government and Bougainville Referendum) of the National 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.

This Constitution may be altered in accordance with Part 22 (Alteration of this Constitution and of Part XIV (Bougainville Constitution and Bougainville Referendum) of the National Constitution, etc.,).

208.     Evolution of this Constitution and of the Autonomous Bougainville Government.

It is the intention of the People of the Autonomous Region of Bougainville that this Constitution and the Autonomous Bougainville Government should develop and evolve as the circumstances and resources of Bougainville change.

209.     Interpretative Jurisdiction.

(1) Until any change in the status of Bougainville that may occur following the Bougainville Referendum, the

(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.

(1) Subject to Subsection (4), the Bougainville High Court shall, on application by an authority referred to in Subsection (3), give its opinion on any question relating to the interpretation or application of any provision of this Constitution, including (but without limiting the generality of that expression) any question as to the validity of a Bougainville law or proposed Bougainville law.

(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.

(1) The Preamble to this Constitution forms part of this Constitution and, as appropriate

(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.

(1) Subject to Section 213 (construction of Bougainville laws), for the purposes of the interpretation of this Constitution, Schedule 2 (Rules for shortening and interpretation of this Constitution) to this Constitution applies.

(2) The Schedules to this Constitution form part of the Constitution.

213.     Construction of Bougainville Laws.

Until any change in the status of Bougainville that may occur following the Bougainville Referendum, it is hereby declared that –

(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.

(1) The following materials may be used, so far as they are relevant, as aids to interpretation where any question relating to the interpretation of this Constitution arises:

(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.

(1) In any circumstances where there is no, or insufficient, administrative structure or procedural laws in place, effect shall nevertheless be given to the provisions of this Constitution, as far as practicable, in the light of the Preamble and the other provisions of Bougainville laws, and by way of analogy from other laws (both Bougainville laws and National laws), general principles of justice and generally accepted doctrine.

(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.

The Autonomous Bougainville Government shall endeavour to ensure that this Constitution is accessible to the People and to this end shall –

(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.

(1) In this section, “relevant National Constitutional Law” means

(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