Bougainville's former capital, Arawa. Photo: Johnny Blades / RNZ Pacific
The autonomous Papua New Guinea region of Bougainville, which expects to have won its independence by 2027, has now drawn up a draft of a new constitution.
That document is now being scrutinised throughout Bougainville.
One of the people involved in the project, as an advisor, was Australian constitutional lawyer and academic, Anthony Regan, spoke to RNZ Pacific this week.
Don Wiseman: The Pacific seen a fair few of these in recent times. What's different about this one?
Anthony Regan: Yes. Bougainville had really only one constitution since the time of the Peace Agreement. There was one before that in 1976, which set up the provincial government in Bougainville. The one that was adopted in 2004, after the Peace Agreement, was establishing a government recognised by the Peace Agreement provided for by the Peace Agreement. The constitution just provided the structures and the processes of government, because the Peace Agreement and the amendments to the Papua New Guinea constitution, were here the provision was made for the powers and functions and the resources, the funding in particular. Those things did not need to get dealt with. Similarly, human rights were provided for under the PNG constitution and although Bougainville was empowered to make additional rights, it was, under the Peace Agreement, accepting what Bougainville regarded as an acceptable human rights regime under the PNG constitution. The 2004 constitution was a bare bones constitution, not in any way a normal national constitution.
DW: And it was a codicil to the PNG document, wasn't it?
AR: It was, a unique one, because it was unlike the arrangements for the rest of the country where there was nothing similar. The degree of autonomy available to Bougainville was dramatically higher than was available to the provinces elsewhere in PNG. But that dramatic level of autonomy was largely provided for in powers under the PNG constitution. Part of the autonomy was the power to make their own constitution about the structures and institutions and processes. And that's what they did making the constitution, so they were aware they were developing a unique autonomy, but by doing so within the framework of the PNG constitution, as amended, after the Peace Agreement.
DW: Now, Fiji, as it was preparing to return to democracy brought in Kenyan academic Yash Ghai, and the constitution he had overseen was lauded, I think, in a lot of circles, but upset the people in the Fiji regime at that time. But that document has played quite a key role here.
AR: Yes. And part of the reason for that was that Yash Ghai has been my mentor for the last 40 years. And he brought me in as a member of a three-member panel of experts to assess that draft constitution in early December 2012. I had a copy of that draft constitution, which is now very difficult to obtain. I provided that to the drafter, who was not aware of it, other than she was aware of it as a thing but had never seen it. She was deeply impressed by it. And much of the idea in it was of great interest to the Bougainville Constitutional Planning Commission as well. There are many other sources - Kenya, Papua New Guinea itself and a range of other sources, but the Fiji one was significant.
DW: But the Bougainville one does differ, as I understand it, or at least as far as the draft goes, - there's a lot of emphasis on the handling of land, resources and the environment.
AR: Yes, it does. That was given a fair bit of attention in Fiji as well, but for very different reasons. Because of the history of land issues in the racially divided, ethnically divided situation of Fiji. Bougainville is much more focussed on dealing with the legacy of the [Panguna] mine and exclusion of landowners from involvement in that.
Bougainville President Ishmael Toroama Photo: Supplied/ FB -Autonomous Bougainville Government
DW: How do you write environmental issues into the constitution.
AR: You are speaking as a New Zealander, I think. You can write anything into a constitution. The American tradition of constitutions is to have them very short. That's not the tradition that's developed now, in post-colonial situations. Not so much with their original constitutions, when they became independent. They tended to be bare bones constitutions, particularly in the British system, not quite so much in the fringe. But after the initial constitutions when things went bad, and there was lots of conflict and other problems in the post- colonial states, they tended to develop much more comprehensive constitutions that sought to deal with the problems that they inherited from the colonial period. Papua New Guinea was one that was making its constitution quite late in the post-colonial period the post- colonial constitution making started in the late 1940s, with India, then Africa and some of them in the 50s. And then in the 60s, Papua New Guinea to develop theirs in 1972 to 1974 period, and they learned a great deal from the post-colonial constitutions, that had been developed post-independence, and they developed a very long and detailed constitution. And that dealt quite a bit with the environment, because even then, in the early '70s, environmental issues are becoming quite significant. If a country sees environment as a big problem, it deals with it, in various ways, in the constitution. There are modern constitutions where there's very specific rights of the environment to protection. What they have done in Bougainville is not very dramatically different from a lot of others.
DW: Right across the Bougainville region, there were consultations. But how much of a say did the ordinary Bougainvillean get?
AR: I have been involved in participatory constitution making in a number of places. I have worked for three years in Uganda on their constitution. What happens with people giving their views about constitutions is that usually they don't have a great deal of knowledge about what can go in a constitution. People tend to think that a constitution when it's being made provides the opportunity to sort out all their immediate problems. And they tend to have a lot of policy type recommendations given to them. But if you think carefully about what you're being told by ordinary people in this way, they give you a real picture about what the real problems of a country are. You then tend to try and design your constitution to a large extent around that picture. That doesn't mean that people don't have strong views about particular issues. For example, in Bougainville, corruption, and mismanagement in the public sector, was a strong thing coming through, and that's now being heavily reflected in the constitution. There are a number of things like that where people's views did have a significant impact. Another one would be the role of customary authority, land and environment, as you're saying. The constitution making commission is heavily influenced by what it heard from the people.
DW: Now, the ABG legislature has got this quite remarkable situation where they have three seats reserved for women, three seats reserved for former militants. My impression was at the beginning, that was a transitory thing, that they were going to be done away with at some point. But I get the impression from what I've seen of the draft that those seats will stay for, well, some time.
AR: Yes, the women's seats, there was never any intention that they would be time limited necessarily. The ex- combatants, the proposal within the 2004 Constitution was that they should cease after the [Independence] Referendum was held. It was felt, at that time, that ex combatants should have a role in ensuring that things did happen in accordance with the Peace Agreement, because there was some uncertainty in people's minds about whether a referendum really would occur. And it was felt that they had in some ways a right to be involved. When the preparations were being made for the 2020 elections. After the referendum, there was a move to remove the ex-combatants' seats going forward. And that move was defeated by an amendment in the constitution - that was defeated. And they were kept. There's never been a further revision, a further consideration of that.
DW: There will have to be at some point, of course, because you're going to run out of former combatants.
AR: Indeed, at some point in the future. It's a bit of a surprise that that was agreed to, to go forward in the independence constitution, if it's eventually adopted. And the thinking was that it would now become veterans and the other veterans, such as the police, and possibly, if there's a Bougainville Defence Force of some sort established, then they might be also eligible for those seats. But it's still a little bit unclear how that will all work out. What you have, in May, of course, is a first draft. And that's now under review through a widespread consultation process. And I don't know what the reaction of the ordinary people will be to the continuation of those seats. That could get revised. I think the women's seats are most unlikely to be abolished, anyway. I think they're most likely to go forward.
DW: What sort of feedback has there been from the rest of PNG?
AR: Not a great deal, publicly. I think there's quite a bit of discussion on social media, which is very mixed, as you might imagine, from what I am hearing, I do not follow social media very closely, but that is what people tell me. There has been very little comment in the press. It is a bit unclear, so far. The public debate about the future of Bougainville is rather muted.
