Judiciary Reform: Bougainville Peace Agreement

BPA (B)(4):
31. The Bougainville Constitution may provide for an impartial judiciary for Bougainville, or may provide for Bougainville to operate either in full or in part under courts established under the national Constitution.

BPA (B)(13):

276. The National Constitution will be amended to allow the Bougainville Constitution to provide for the establishment within the National Judicial System of courts and tribunals in Bougainville ranging from courts with a similar jurisdiction to Village Courts to a court of similar jurisdiction to the National Court.

277. The name "National Court" shall not be used for any Court established by Bougainville.

278. The highest court in Bougainville will have such jurisdiction, consistent with the agreed autonomy arrangements, as may be provided under the Bougainville Constitution.

279. Until Bougainville establishes a court of similar jurisdiction to the National Court with power to hear cases under the Criminal Code, the application and enforcement of the Criminal Code will remain solely with the National Court.

280. Subject to these arrangements, laws made by the National and Bougainville Governments will be enforceable in one another's courts.

281. The highest Court established under Bougainville law will have the power to make orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

282. The National Government and the autonomous Bougainville Government will consult with a view to legislating for Bougainville courts and tribunals to exercise additional jurisdiction under National law.

283. The highest Bougainville Court may have the power to review the exercise of judicial authority by courts and tribunals established under Bougainville law.

284. The National Court will remain an alternative court of review and appeal (that is, alternative to the highest appeal court in Bougainville; but not vice-versa)

285. The Supreme Court of Papua New Guinea will be the final court of appeal for Bougainville.

286. The Bougainville Constitution may provide that questions of interpretation of die Bougainville Constitution will be taken directly to the highest Bougainville court, and may be appealed to the Supreme Court.

287. Questions of interpretation of the agreed autonomy arrangements in the National Constitution or Organic Laws will be taken directly to the National or Supreme Court, as appropriate.

288. Appointment and removal of Bougainville judges will be non-political, with two representatives of the National Judicial and Legal Services Commission serving on the appointments body

289. The National Judicial System will continue to carry out its responsibilities in Bougainville.

290. The autonomous Bougainville Government will provide all reasonable assistance to the National Judicial System in the exercise of its functions.

291. The National and Bougainville Court administrations will cooperate with one another.

292. Appointments to the National Judiciary will be open to qualified persons from throughout Papua New Guinea.

293. The National Government and the autonomous Bougainville Government will develop and implement a plan for restoring and building the capacity of courts in Bougainville, including courts at village level, as provided in the Lincoln Agreement.

294. The autonomous Bougainville Government will meet the costs of establishing courts of its own above the level of the District Court as well as special tribunals.

Implementation History

2001

No Implementation

The Judicial reform provision in the peace agreement gave the proposed Autonomous Bougainville Government extensive powers, including establishing its own court system. The implementation of this provision, however, cannot be ascertained without the implementation of the autonomy provision in the agreement. 

2002

Intermediate Implementation

On January 23, 2002, the PNG Parliament unanimously passed the constitutional amendments related to Bougainville. Both sides of the House were united to ensure that the proposed legislation, giving more autonomy to the Bougainville Government, remained on track for the final reading in March. The amendment also allowed for a referendum on independence to be held within 10 to 15 years.1 Bougainville effectively had powers over its own police, courts, public service, and taxation as of January 2002.2

On March 27, 2002, the PNG Parliament voted unanimously in favor of a proposed constitutional amendment and organic law on peacebuilding in Bougainville.3 This cleared the way for the constitution writing process of Autonomous Bougainville, which would deal with the court system of Autonomous Bougainville.

  • 1. "Papua New Guinea: Bougainville bill clears first hurdle," BBC Monitoring Asia Pacific, January 24, 2002.
  • 2. "Papua New Guinea to Grant Autonomy," Associated Press Online, January 23, 2002.
  • 3. "Papua New Guinea premier says "no turning back" on Bougainville autonomy," BBC Summary of World Broadcasts, March 28, 2002.
2003

Intermediate Implementation

No information available on court reform initiatives. 

2004

Full Implementation

On 14 January 2004, the National Government handed over the constitution to the Autonomous Bougainville Government in Arawa.4 The new Autonomous Bougainville Constitution includes a provision for its own court system. The new Autonomous Bougainville constitution, from Article 112 to Article 137, addresses the make-up, appointment process, and functioning of the judicial arm of the government.

  • 4. "Papua New Guinea government hands over Bougainville constitution," BBC Monitoring Asia Pacific, January 17, 2005.
2005

Full Implementation

No further developments observed.

2006

Full Implementation

No further developments observed.

2007

Full Implementation

No further developments observed.

2008

Full Implementation

No further developments observed.

2009

Full Implementation

No further developments observed.

2010

Full Implementation

No further developments observed.