Jan 07, 2004

Ombudsman Commission amends Bougainville constitution

The National Constitution was amended in good faith, to cater for the future of the people of Bougainville
The National Constitution was amended in good faith, to cater for the future of the people of Bougainville, Chief Ombudsman Ila Geno has said. This is something that the people of Papua New Guinea ought to be proud of, Mr Geno told The National. He was commenting on the Attorney-Generals task force report on the amendment of the National Constitution, giving legislative powers to a Bougainville Autonomous Government. The task force in its report found that section 276(2) of the Constitutional Amendment No.23, which gives overriding powers to a Bougainville legislature, should be tested in the Supreme Court through a special constitutional reference of section 19 of the Constitution. The task force had recommended that the Ombudsman Commission be approached to see if it could initiate the constitutional reference. But, Mr Geno said the commission was not duty-bound to challenge the validity of an amendment to the National Constitution or any other constitutional law, including the Organic Law. He said the Ombudsman Commission has an open mind of all of the constitutional issues that have been raised, and would clearly have an interest in the matter if any authority were to raise the issues in the Supreme Court. But, no formal requests have made to the commission at this stage. Mr Geno said he did not think it was correct to say that the National Governments law-making power has been unconditionally surrendered to Bougainville. All that has happened is that the people of a particular part of the country have been given a considerable amount of law-making power, greater than they had before and greater than other parts of the country have. That is what autonomy is about, he said. The amendment has been done carefully and deliberately as part of a peaceful and rigorously negotiated resolution of a terrible conflict involving great loss of life, Mr Geno said. He said changes were made to the Constitution as one of the ways to stop innocent people from being killed and the attempt by the peoples representatives in Parliament to solve the crisis was genuine. The provisions of the amendment in question are sections 276(2) and 296(2)(a) of Constitutional Amendment 23 (CA23), which became law on Aug 7, 2003 incorporating terms of the Bougainville Peace Agreement, and giving the Bougainville legislation an overriding effect where it is inconsistent with a national legislation. The Government task force had recommended that the constitutional validity of s276(2) of CA23 be tested in the Supreme Court through a special constitutional reference. Although it was not duty-bound, Mr Geno said the Ombudsman Commission could still challenge the validity of any amendment as it had authority under section 19 of the Constitution. Mr Geno said the Ombudsman Commission took very seriously its task as guardian of the Constitution and maintained a watching brief over all changes to the Organic Laws and Acts of the Parliament to ensure they complied with the Constitution. On the other hand, he said the commission could take the matter to the Supreme Court on its own initiative and does not have to wait to be asked to do so. Attorney-General Francis Damem has the same power as the Ombudsman Commission under s19 to refer questions of constitutional application and interpretation to the Supreme Court in his capacity as principal legal advisor to the National Executive Council, Mr Geno said. He said the principle legal advisor was one of three law officers of PNG. The others are the Public Prosecutor and the Public Solicitor. As a law officer, the Attorney-General is authorised to make a special reference under section 19(3)(c) of the Constitution. With reference to CA23, Mr Geno said the combined effect of s276(2) and s296(2)(a) of the Constitution would be to allow some Bougainville laws to prevail over National Laws and there is nothing necessarily wrong or unconstitutional about that. Mr Geno said it was quite a normal arrangement in any system of government, where legislative power is divided amongst a national government and other governments, for the other governments to have the power to make laws that override the national governments laws. In the case of Bougainville, the National Government has through CA23, in effect, given up or transferred a lot of law making power to the Bougainville legislature. That was a deliberate decision by the National Parliament made in the context of bringing about a peaceful and constitutional resolution of the Bougainville crisis, Mr Geno said. (The National)