Developing a Home-Grown Independence Constitution in Bougainville

The Autonomous Bougainville Government has released its first draft of a proposed constitution, following a 2019 referendum where 97.7 per cent of voters supported independence. This draft, influenced by numerous constitutions and public consultations, emphasizes good governance, human rights, and environmental protection, highlighting Bougainville’s pursuit of a democratically legitimate, “home-grown” constitution. Nevertheless, the next steps depend on the ongoing post-referendum process with Papua New Guinea – write Anthony J. Regan and Katy LeRoy

On 6 May 2024, the Autonomous Bougainville Government (ABG) released the first draft of its proposed independence constitution. The ABG is a highly autonomous sub-national government in Papua New Guinea (PNG), with strong aspirations for Bougainville (population about 350,000) to soon become the first independent country since South Sudan in 2011. The following will analyse the political and constitutional context, Bougainville’s prior constitution-making history, the current constitution-making process, and the content of the draft.

Political and Constitutional Context

Bougainville’s violent and divisive secessionist conflict (1988-1997) originated largely in longstanding and widespread discontent about environmental and social impacts of the giant Panguna copper and gold mine, as well as the distribution of revenue and other “benefits” from it. The Panguna operation was imposed without consultation on Bougainville by the Australian colonial government administration in the 1960s, mainly for the benefit of PNG as a whole. The mine was operated by a majority-owned subsidiary of the international mining giant, Rio Tinto, from 1972 to 1989, when it was prematurely shut down by the conflict. It has not resumed its operations in the succeeding 35 years.

The conflict was resolved by the Bougainville Peace Agreement 2001 (BPA) comprising four main ‘pillars’: demilitarisation, autonomy status, a decision-making process on Bougainville’s future political status (including a deferred and non-binding referendum on independence, followed by a post-referendum decision-making process involving PNG and the ABG), and the BPA’s “constitutionalisation” through extensive amendments to the PNG Constitution and an associated organic law. These new provisions were all protected from unilateral PNG change by “double entrenchment”, requiring Bougainville legislature approval for any amendments.

The post-referendum process involves ABG-PNG government consultation, and possibly a ‘final decision-making’ PNG parliamentary vote on the referendum results.

The initial implementation of the BPA was notably successful, with the constitutional provisions enacted by early 2003, the first ABG taking office in mid-2005, and demilitarisation largely completed by 2005. The referendum was held in late 2019, with 97.7 per cent of enrolled Bougainvilleans voting for independence and rejecting the ‘greater autonomy’ alternative. The post-referendum process involves ABG-PNG government consultation, and possibly a ‘final decision-making’ PNG parliamentary vote on the referendum results. There were just three consultation meetings, between May and December 2021, that focused on the ABG demand that PNG honour the referendum vote by agreeing to Bougainville independence by 2025. PNG never explicitly rejected that demand, but expressed serious reservations. The most commonly expressed concern was that a secession precedent could see other resource-rich parts of PNG following suit. There is a deep fear that PNG’s perhaps unparalleled degree of diversity (e.g., its approximately 12 million people speak over 850 distinct languages) makes its unity very fragile, which has been evident since well before its 1975 independence.

The consultations did reach agreement on extending the date for a final ‘political settlement’ to no later than 2027. When it became clear that PNG was not agreeing to the ABG’s demand and was instead emphasising its view of the final decision-making authority of the PNG Parliament on the referendum results, the ABG ended the consultations, instead seeking to reach a final agreed decision through a vote in Parliament.

The decision-making process then became mired in differences over Parliament’s role and powers. While the BPA states that ‘final decision-making’ authority on the referendum results will be vested in Parliament, the subsequent constitutional provision is less clear.  PNG claims Parliament has clear power to reject independence through a ‘no’ vote on the results. The ABG argues that the two sides must instead seek agreement on the results, and submit that to Parliament for approval. There is no provision for the ABG legislature to play a role in the process.

In mid-2024, PNG appears committed to tabling the referendum results in Parliament, probably in late 2024 or early 2025, when the limited extent of support for Bougainville independence among the 118 members would almost certainly see a vote rejecting independence. The widespread fear of secession sparking the ultimate unravelling of PNG is a key factor here. The ABG is seeking to ensure that MPs are provided with much more awareness of the issues involved before a vote is taken. It also wants PNG’s agreement to extend the role of the yet-to-be-selected international ‘moderator’ beyond assisting in the process in Parliament to also supporting renewed consultations on the ABG’s demand for independence.

Despite the absence of PNG agreement to independence, the ABG regards its independence constitution-making process as legitimate . . . 

Despite the absence of PNG agreement to independence, the ABG regards its independence constitution-making process as legitimate, as PNG agreed to it in a ‘roadmap’ of process steps approved in the consultations in July 2021. The process could also provide a means of declaring independence without PNG’s legal authorisation, conferring more democratic legitimacy through both the referendum vote and the participatory independence constitution-making process than Bougainville’s two previous failed Unilateral Declarations of Independence (1975 and 1990). Enhanced legitimacy does not, however, guarantee international community recognition.

Bougainville’s Constitutional History

Bougainville has previously developed two (sub-national) constitutions: one establishing the North Solomons Provincial Government (1977) and the other establishing the ABG (2004). Both processes were heavily influenced by PNG’s history of conducting one of the world’s first genuinely participatory constitution-making processes from 1972 to 1975. It was intended to produce a PNG independence constitution that would be “home-grown” in two distinct ways: through its content being developed through public participation, and by its legal authority coming from the PNG people rather than the departing colonial power, Australia.

The 1977 Constitution was enacted by a broadly representative Constituent Assembly, and the 2004 document was initially developed by the Bougainville Constitutional Commission through a highly participatory 18-month process, then considered and enacted by a broadly representative constituent assembly. Both sub-national constitutions dealt mainly with sub-national institutions and processes. Issues such as powers, revenue, human rights, and citizenship, among others, remained as national Constitution matters. Of course, the scope of the proposed Independence Constitution is far wider.

The Current Process, and Possible Further Stages

The Bougainville Constitutional Planning Commission (BCPC) was established by the ABG in April 2022. Its 40 members were nominated by ABG legislature members, selected to ensure participation of multiple “interests”, including women, churches, youth, and former combatants, among others. Apart from its deputy (and de facto) chair, the ABG Attorney General and Minister for Bougainville Independence Mission Implementation, Ezekiel Masatt, there was only one qualified lawyer, and few with tertiary education.

The BCPC conducted extensive public consultations and compiled detailed consultation reports on the people’s views. The BCPC drew on these reports in deciding the content of the draft over six multi-day meetings in late 2023 to early 2024. At the time of writing, the BCPC is undertaking a two-month consultative process on the draft. After this period, they will review the submissions received and revise the draft to produce a final version by late 2024.

What happens next will depend on the outcomes of the ongoing post-referendum process.

What happens next will depend on the outcomes of the ongoing post-referendum process. If the ABG ultimately chooses to declare independence without PNG approval, it may follow much the same process by which PNG made its autochthonous Independence Constitution. That would involve a Bougainville Constituent Assembly (BCA), defined in the draft (Schedule 8) to comprise the ABG legislature members elected in the then most recent ABG election (likely to be mid-2025), plus additional members appointed by the ABG cabinet. The BCA would vest itself with authority to debate and adopt the final BCPC draft, which would declare independence on behalf of the people that the Assembly represents. As with PNG, the BCA would also enact ‘provisional laws’ to be recognised by the Constitution, providing details of the new institutions established by it. A provisional law for an appointments body would empower appointment, in advance, of the heads and members of such new institutions as would be required to take office and operate from Independence Day (e.g., Supreme Court, police commissioner, and public prosecutor).

Content of the Draft Bougainville Independence Constitution

The draft draws on numerous sources, including the ABG Constitution, the PNG Constitution, the BPA, the consultation reports, and various other constitutions (e.g., Kenya, 2010). It was also inspired by the 2012 draft constitution of Fiji, prepared by a Commission chaired by Professor Yash Ghai.

Drafted in plain language for clarity and accessibility, the draft consists of a preamble, 14 chapters and 8 schedules. The short preamble draws on the ABG Constitution, the consultation reports, and a draft crafted overnight by a BCPC Commission member inspired by the previous day’s discussion of the issues a preamble might touch upon. It recognises important cultural and historical points and future aspirations as a background and prelude to an independence constitution. It does not (yet) include a declaration of independence.

The draft’s structure bears similarities to the Fiji 2012 draft, but the BCPC marked the significance of issues such as land, resources and environment, and good governance and leadership, by including them in early chapters.

Chapter 1, on founding provisions, establishes the Republic of Bougainville as a sovereign, democratic state, and sets out its core founding values, including human rights and freedoms, the rule of law, good governance, and respect for cultural and natural heritage. It makes the Constitution the supreme law, imposes obligations to respect and uphold it, and contains guiding principles for office holders and social and economic objectives. It recognises as citizens members by birth of a customary land-owning clan, permits dual or multiple citizenship, and contemplates statutory provision for how others obtain citizenship.

Responding to Bougainville’s experience of devastating impacts of large-scale mining, Chapter 2 declares the responsibility of Bougainvilleans to care for and preserve the natural environment (including for future generations), recognises customary landowners as owners of natural resources, and articulates enforceable principles of land use and environmental protection. It also vests both the state and entities involved in resource extraction and development with a duty to consult customary owners and other affected persons before the grant of any permit and during the life of any approved project.

The consultation reports highlighted widespread concerns about leadership integrity and accountability.

The consultation reports highlighted widespread concerns about leadership integrity and accountability. Drawing on the Fiji 2012 draft and PNG and ABG constitutional provisions for leadership codes, Chapter 3 imposes conduct and integrity obligations on public officers. Legislation must provide for criminal misconduct and forfeiture, and protection for whistleblowers is required. The Ombudsman and Integrity Commission will investigate and report on maladministration complaints, monitor Leadership Code compliance, and refer and prosecute alleged criminal misconduct by public officers. The Leadership Code is provided in Schedule 5.

Human rights and freedoms under Chapter 4 are progressive in the context of comparative constitutionalism, and provide broad standing for enforcement. They include civil and political rights as well as certain social and economic rights that, while not directly enforceable, impose obligations on the state and may in some circumstances require its positive action. They are modelled closely on the Fiji 2012 draft, with appropriate contextual modifications. The Bougainville Human Rights Commission will monitor, investigate and report on observance, and alleged abuses, of human rights, and exercise limited enforcement powers. The Supreme Court will have wide enforcement powers.

The legislative, executive and judicial institutions under Chapters 5-8 retain some key but unusual features of the ABG Constitution . . . 

The legislative, executive and judicial institutions under Chapters 5-8 retain some key but unusual features of the ABG Constitution, including reserved seats for women and veterans, and a directly elected president who sits in the House of Representatives (HoR), selects executive council members, and is both head of state and head of government. Unlike in the ABG Constitution, there is provision for a position of Leader of the Opposition, but only if at least 5 HoR members do not support the President and the cabinet (reflecting the strong cultural and post-conflict Bougainvillean preference for consensus decision-making). The legislature will of course have plenary legislative power, but provision is made for certain matters on which the HoR must or may legislate. They include sub-national government, one form being a Bougainville Chiefs Congress, to advise government ‘on matters relating to custom and the role of chiefs and other traditional leaders’ (Article 64(2)(a)).

For the time being, the ABG Community Government Act 2016 will continue to operate, under which 45 community governments comprise eight to 15 wards that must both each elect one female and one male representative, and also rotate male and female chairs after every four year term. Uncertainty here may arise from the requirement that subnational government legislation ‘must provide for the recognition of the roles of chiefs and other traditional leaders’ (Article 63(2)). Although most of Bougainville’s diverse language and cultural groups are heavily matrilineal, giving significant respect to and roles for women, they are also patriarchal, with some (though reducing) resistance to women playing public leadership roles. This means that women are generally regarded as not being capable of being chiefs, though some senior women have status as ‘other traditional leaders’.  

Chapter 9 establishes independent public offices, including a significant body in Bougainville’s post-conflict context: the Peace, Truth and Reconciliation Commission. Independence of independent public offices is protected by guarantees of sufficient financial and other resources, freedom from direction or control, and security of benefits and tenure.

In addition to familiar public finance provisions in Chapter 10, drawing on the Fiji 2012 draft, expenditure must promote fair and balanced development of the nation. A sovereign wealth fund will receive a prescribed proportion of natural resource revenue.

Chapter 11 provides for key government services, such as the public service, police force, and teaching service, and Chapter 12 contains rules about interpretation, enforcement, progressive implementation, alteration (amendment) and review of the Constitution every 15 years. Chapter 13 provides for states of emergency, and Chapter 14 for transitional provisions, including the provisional laws (above), and establishment of a constitution implementation commission and implementation oversight committee, modelled on Kenya’s 2010 Constitution (Article 262(4)-(5)).  

Unusually, it empowers the Ombudsman and Integrity Commission to impose sanctions [for breaching] the Leadership Code or another constitutional provision.

Schedules contain matters of detail (land and sea boundaries, the flag and emblem, dictionary, etc.). Schedule 6 (closely modelled on the Fiji 2012 draft), on standards and procedures for removal from public office, includes rules for removal of the President and other public officers on grounds of incapacity. Unusually, it empowers the Ombudsman and Integrity Commission to impose sanctions (reviewable by the Supreme Court) on public officers after finding a public officer (other than a judge) has breached the Leadership Code or another constitutional provision.

Conclusion

Bougainville’s current process, directed at producing a “home-grown” constitution, offers an unusual example of independence constitution-making, in terms of both content and – possibly – legal authorisation. With Bougainville seeking a reluctant PNG’s agreement to its independence, the heavy influence of the PNG independence constitution-making process is perhaps ironic.

Anthony J. Regan is a professor of constitutional law in the Department of Pacific Affairs, Australian National University, Canberra, and an adviser to the ABG and to the BCPC.

Katy LeRoy is a comparative constitutional lawyer and legislative drafter with a PhD in participatory constitution-making, and is also an adviser to the BCPC.

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Suggested citation: Anthony J. Regan and Katy LeRoy, ‘Developing a Home-Grown Independence Constitution in Bougainville’, ConstitutionNet, International IDEA, 7 June 2024, https://constitutionnet.org/news/voices/developing-home-grown-independence-constitution-bougainville

Click here for updates on constitutional developments in Bougainville and Papua New Guinea.

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International IDEA was pleased to provide technical and financial support during Bougainville’s constitution-making process.