ROW OVER BOUGAINVILLE AMNESTY, PARDON

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By Sinclaire Solomon

PORT MORESBY, Papua New Guinea (November 16, 2001 – The National)---Public Prosecutor Chronox Manek and Chief Ombudsman Ila Geno are on a collision course with Attorney General Francis Damem and the National Government over amnesty and pardon in relation to Bougainville.

The two constitutional office holders have in fact challenged a special reference sought by Mr. Damem relating to granting of amnesty and pardon to persons involved in the Bougainville crisis-related activities on all sides.

Mr. Manek and Mr. Geno have successfully sought and have been granted leave by the Chief Justice, Sir Arnold Amet, to intervene in the Special Reference filed in the Supreme Court on Sept. 24, 2001.

A date is yet to be set for arguments in the Supreme Court.

Nonggorr & Associates Lawyers, from instructions by Attorney General Francis Damem, filed the Special Reference pursuant to Section 19 of the Constitution relating to the powers of the Head of State to grant amnesty and pardon to persons involved in the Bougainville crisis-related activities.

Addressing the Department of Justice and Attorney General's inaugural Government Law Officers' conference in Port Moresby on Nov. 8, Mr. Manek informed the gathering in the presence of Mr. Damem of the existence of the Special Reference and that he would intervene.

In the Special Reference, Mr Damem questioned the powers of the Public Prosecutor under Section 176 of the Constitution regarding directions to be issued by the Head of State in relation to matters of national security and international relations. The reference arises from the Lincoln Agreement relating to peace and normalcy on the copper-rich island. Under the Agreement, the Government is committed to grant amnesty to persons involved in crisis-related activities on sides, and following receipts of advice from the Advisory Committee on the Power of Mercy, recommend to the Head of State pardons for persons convicted of crisis-related offences.

Mr. Manek said that the Office of the Public Prosecutor is a "creature" established pursuant to Section 17 of the Constitution. He said that the functions of the Public Prosecutor are to control the exercise and performance of the prosecution functions, including appeals and the refusal to initiate and the discontinuance of prosecutions, before the courts, and bring or decline to bring proceedings under the Leadership Code for misconduct in office. Mr. Manek said that in the performance of his functions under the Constitution, the Public Prosecutor is not subject to direction or control by any person or authority. However, he said that the Head of State, acting with and in accordance with the advice of the National Executive Council, may give direction to the Public Prosecutor on any matters that might prejudice the security, defence or international relations of PNG, including PNG's relations with the government of any other country or with any international organizations.

"Where such a direction is given, the Prime Minister shall table the direction at the next sitting of the National Parliament unless, after consultation with the Opposition Leader, he considers that the tabling of the direction is likely to prejudice the security, defense or international relations of PNG," he said.

Meanwhile, Mr. Manek said that the Constitution gives the Public Prosecutor the power to control any criminal prosecutions in the courts and tribunals.

"Generally, this role centers around the prosecution of criminal offences under the Criminal Code. PNG law also empowers the Public Prosecutor to give his 'Consent to Prosecute' in statutory offences.

"The practice has been to request the client department to forward all their files to the Public Prosecutor for his perusal. If the Public Prosecutor is satisfied on the evidence presented, he signs the consent authorizing prosecution.

"He does not give blanket consent to prosecution. All matters are assessed on their own merits," Mr. Manek said.

For additional reports from The National, go to PACIFIC ISLANDS REPORT News/Information Links: Newspapers/The National (Papua New Guinea).

Provided by Vikki John VIKKI@law.uts.edu.au" target="_blank">(VIKKI@law.uts.edu.au)

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