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By Sinclaire Solomon

PORT MORESBY, Papua New Guinea (The National) – A Papua New Guinea government task force reviewing the draft Bougainville constitution has questioned the validity of an amendment to the country’s constitution giving legislative powers to a Bougainville Autonomous Government.

The task force said that by passing the amendment in August last year, the National Parliament may be in breach of the National Constitution which prohibits both total and partial divesting of the legislative power of the people of PNG.

The Attorney General's taskforce, headed by Attorney General Francis Damem and team of senior government lawyers, highlighted this and other anomalies in its 192-page report which has been presented to the National Government.

The provisions in question are sections 296(2)(a) and 276(2) of Constitutional Amendment 23, or CA23, which became law on Aug 7, incorporating the terms of the Bougainville Peace Agreement, and giving the Bougainville legislation the overriding effect where it is inconsistent with a national legislation.

The 276(2) provision authorises the validity of every provision in CA23 to override the validity of any contrary provision in CA23 as well as any provision in the rest of the National Constitution.

In a case where there is an inconsistency between the national and a Bougainville law, the latter law prevails. This is the combined effect of both sections and 296(2)(a) and 276(2).

Provision 296(2)(a) would leave for instance, the basic rights of the citizens in Bougainville completely unprotected, if a Bougainvillean is to breach them by its laws. Secondly, even if the inconsistency of the provisions in question is reconciled somehow, the National Parliament would still not be able to nullify the effect of any such Bougainville legislation because of the overriding effect s296(2)(a) of CA23 gives to the Bougainville legislation.

The Government task force recommends that the constitutional validity of s276(2) of CA23 should be tested in the Supreme Court through a Supreme Court Special Constitutional Reference provision of s19 of the National Constitution.

The Ombudsman Commission should be approached to see if it can initiate the Constitutional Reference "to retrieve the legislative power of the people of PNG under section 100(3) of the National Constitution that was surrendered unconditionally to Bougainville".

The task force says the basic constitutional argument against s276(2) of CA23 is that the National Parliament had surrendered the Irreducible and Indivisible Core of State Sovereignty (IAICOSS) Powers to the Bougainville House of Representatives.

"It has exceeded its powers as defined by the National Constitution and therefore to that extent, section 276 of CA23 is unconstitutional."

"It has breached s100 (3) of the National Constitution which prohibits both total and partial divesting of the legislative power of the people of PNG. The amendment power of the National Parliament is not without limitation because every power given by the National Constitution is limited power, including the power to amend the National Constitution as contained in sections 13, 14 and 15 of the National Constitution. Those limits are both express and implicit.

"The most important limitation implicit in the amendment power is that it should not be used to cause the disintegration of the State. In enacting certain provisions of the CA23, especially those relating to the IAICOSS powers, including the human rights of the PNG citizens, the National Parliament failed to observe that fundamental limitation implicit in its amendment power.

"To that extent, the National Parliament has breached s100(3) of the National Constitution by enacting s276(2) of the CA23 insofar as it has ignored the prohibition contained in that provision."

January 5, 2004

The National:


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