Institution building post-referendum

The National Weekender
BOUGAINVILLE

What needs to be done on Bougainville in the wake of the 2019 referendum.

By ANNA DZIEDZIC and CHERYL SAUNDERS

THERE will be four key questions before decision-makers in the post-referendum consultations. While the primary focus of the consultations will be the future relationship between Bougainville and PNG, the other questions are necessarily linked to this relationship. The questions are identified separately below, to ensure that each is actively considered, in the interests of workable and lasting outcomes.
The questions are:

  • What should be the future relationship between Bougainville and PNG, following the referendum?
  • What changes are necessary to achieve that relationship, in both PNG and Bougainville, in terms of governing authority and the way in which authority is exercised?
  • How should these changes be made, to ensure that they work as effectively as possible from the standpoint of both Bougainville and PNG?
  • Over what time frame should change occur and in what order of priority?

The future relationship between Bougainville and PNG might take different forms, with multiple different features, all of which are consistent with self-determination. For the purposes of this report, as an aid to understanding the options, the possibilities are grouped into three broad categories. We note, however, that there may be variations within each. These categories are: Self-determination for Bougainville outside PNG, as a formally sovereign state; Self-determination outside PNG, but in a form of free association with it; Self-determination in a form that leaves Bougainville formally part of PNG.

Three influential factors
There are at least three contextual factors that are relevant to the form and outcomes of the consultations. One is the nature of the existing relationship between PNG and Bougainville. These two territories have been connected for the purposes of governance for over 100 years. The legacies of this connection include both long collaboration and significant conflict (Regan & Griffin, 2015). Both legacies are evident in the considerable achievements of the BPA, which brought a bitter conflict to a close in a way that has proved both manageable and lasting. Bougainville’s peace process provides a model from which others might learn.
Nevertheless, from the standpoint of the consultations, these legacies tend to pull in opposite directions. Complicating resolution further, a century of governance of PNG and Bougainville as a single entity also has encouraged the intermixture of peoples and the interdependence of economies.
Self-determination for Bougainville will require these to be disentangled to some degree, whatever form it takes. On the other hand, geography, shared history and the realities of globalisation suggest that a close relationship of some kind will continue. A second contextual factor that demands consideration is Bougainville’s capability, now and into the future. Capability should be understood for this purpose as a combination of the knowledge, skills and integrity needed to develop policies, manage programs and run institutions in ways that work for the people of Bougainville and for the polity as a whole. Capability, including ways in which it might be developed, is relevant to all the key questions for decision in the course of the consultations.
Capability is an issue that arises when any political community acquires major new responsibilities for which it has final authority. In one sense, Bougainville has an advantage in this regard over many other newly empowered political communities, thanks to the experience of nearly two decades of autonomy since the signing of the BPA. Capability is nevertheless a major issue for Bougainville, in ways that are documented in a range of relatively recent reports and reviews (Government of Papua New Guinea and Autonomous Bougainville Government Joint Supervisory Body, 2018; Government of Papua New Guinea and Autonomous Bougainville Government Joint Supervisory Body, 2013; McKenna, 2019; Nisira, 2017; Peake, 2019).

Comparisons
Bougainville and PNG have distinctive features and a distinctive history that must guide both the decisions that are made in the course of the consultations and the ways in which they are put into effect. Properly used, however, the experiences of other countries can be a valuable source from which insights for the consultations between governments can be drawn. The companion report, Increasing Revenues for the Bougainville Government (Chand et al., 2020), identifies 57 states that, like Bougainville, have small island territories, in order to examine their relevance as comparators for the purposes of Bougainville’s own economic and fiscal futures.
From this range, the report ultimately identifies 18 such states that are broadly comparable to Bougainville in terms of size and economic opportunity (Chand et al., 2020).This section of this report identifies three ways in particular in which comparative experience might be useful for the institutional and related issues covered by this report.First, the experiences of other countries may provide useful insight into each of the broad options for the relationship between Bougainville and PNG.
Some examples are given below.
Timor Leste and South Sudan are both states that have separated from larger states in relatively recent times and have achieved self-determination as independent states in their own right.44 Timor Leste became an independent state in 2002 and South Sudan in 2011.
Cook Islands, Niue, the Federated States of Micronesia, Marshall Islands and Palau are examples of states that are not part of a larger state but operate in ‘free association’ with one.5• Greenland is formally part of the Kingdom of Denmark, but it enjoys self-government on a basis that includes a right to secede and so offers an example of self-determination while formally remaining part of a larger state (Ackrén, 2017).The experiences of these and other states show how each of the broad options for self-determination works, as a basis for determining their suitability for Bougainville. Second, polities that are broadly similar to Bougainville in terms of geographic and population size, stage of development, and perhaps culture, offer insights into such matters as the range of institutions that Bougainville might need; the challenges of operating them; and the extent to which governance can be enhanced by local cultural practice.
A subset of the states identified in the report Increasing Revenues (Chand et al., 2021) is most likely to be relevant for these purposes. States that might offer particular insights into the design and operation of institutions in Bougainville include Fiji, Kiribati, the Federated States of Micronesia, Samoa, Solomon Islands, Timor Leste, Tonga and Vanuatu. While each of these polities is different to Bougainville in many respects, all are island states, all are relatively small in global terms, and all are in the same region of the world, with similar neighbours, some shared historical experiences, significant distinctive cultures and broadly similar aspirations.
Third, comparative experience can be useful also to demonstrate how smaller states, with limited resources, share institutions of various kinds, including by using institutions of others. Examples that will be given in the course of this report include currency, courts and diplomatic representation. There is no shortage of public institutions that might be organised in this way, however, in the short term or even indefinitely. These practices are familiar in smaller states throughout the world, but the same range of Pacific states might be most useful comparators for Bougainville’s purposes. It is not practicable in this report to canvass comparative experiences in any depth. Once the consultations get underway and the direction of the consultations becomes clear, more specific questions can be formulated. There may be value in organising a forum of representatives of selected states to provide detailed information on institutions and their operation in practice.

Political community
Creating a polity to realise self-determination requires an effective political community, in addition to the institutions and other trappings of statehood (Bogdandy et al., 2005). An effective political community requires cohesion between peoples, trust in public institutions and a shared commitment to the polity. In an effective political community, disagreement is resolved through processes provided by or under the auspices of the state, potentially including customary law and practice. Members of a political community will not always be pleased by an election outcome, a new law or policy, or a decision of a court or other arbiter. Where a political community is working well, however, people accept such outcomes as part of a system to which they belong and on which they are prepared to rely, even while working to change decisions for the future. Bougainville already has a political community; however, greater demands will be placed on it by self-determination as Bougainville becomes increasingly self-reliant.
Although institutions based on western constitutional models have been established, customary institutions, such as councils of elders and chiefs, customary law, and customary methods of decision making and dispute resolution are recognised in Bougainville’s constitution and laws. Customary institutions have a high degree of legitimacy and operate alongside state institutions in what has been described as an example of successful ‘hybrid’ state building (Boege et al., 2008). Customary institutions and processes have played a crucial role during the period of autonomy under the BPA. Bougainville can continue to draw on these institutions to develop a political community that suits its new circumstances and needs.
But there are challenges in building political community in Bougainville as well. Regionalism and factionalism are as present in Bougainville as elsewhere (Bougainville News, 2019). The animosities of the civil war are not entirely overcome and continue to affect the cohesion of local communities (Autonomous Bougainville Government Department of Peace and Conciliation Resources, 2019). Divisions could be exacerbated by future initiatives including, most obviously, reopening the Panguna mine. The struggle for self-determination has been a catalyst for unity of purpose within Bougainville that could be weakened once that struggle is over. Governance in Bougainville in conditions of self-determination is certain to be difficult, has the potential to give rise to dissatisfaction among sections of the people, and could undermine the solidarity on which political community depends.

Citizenship and passports
Any political community has rules or practices that identify its members. At present, Bougainville’s Constitution recognises the legal status of a ‘Bougainvillean’. Section 7 of the Constitution sets out the way in which Bougainvillean status is acquired. Section 8 identifies key rights held by Bougainvilleans to own customary land and to stand for election. Section 9 sets out the obligations of a Bougainvillean.
If Bougainville were to become a polity outside PNG, it would be necessary to create a status of Bougainville citizen and to provide for a system of Bougainville passports. By contrast, if Bougainville were to achieve a form of self-determination in free association with PNG, it could have its own citizenship and issue its own passports, but it need not do so. So, for example, Niue, which has a form of free association with New Zealand, relies on New Zealand citizenship and accepts that its people use New Zealand passports, as convenient but not necessary attributes of free association (Angelo, 2009). Ideas about membership and belonging are not exclusive to independent countries, however.
They also apply in distinct political communities within countries. Some of these use the terminology of ‘citizenship’ to describe the status of belonging. In these cases, people may have multiple citizenships within the same country, at different levels of government, each of which is meaningful and valued in its own way. A similar idea of multiple citizenships within the same polity can be found in some supra-national arrangements. For example, someone who lives in France may be a citizen of both France and the European Union. It follows that even if Bougainville were to achieve self-determination in a form that meant it formally remained part of PNG, a status of Bougainville citizen could be created; although, in this case, passports would continue to be issued by PNG. If a new status of citizen of Bougainville were created, it would be necessary to decide who is entitled to it. A broadly similar issue was faced in many Pacific states as they obtained independence from colonial rule.
One possibility would be to define citizenship of Bougainville by reference to the previous status of belonging, as a ‘Bougainvillean’. With this approach, anyone who meets the definition of ‘Bougainvillean’ in the current constitution could automatically become a citizen of Bougainville on a specified date.
The existing criteria would prescribe the bases on which citizenship of Bougainville might be acquired in the future. If this approach were adopted, consideration should be given to whether place of birth or other connection with the territory of Bougainville should be added to the criteria for Bougainville citizenship. Under the current provisions, the requirement for Bougainvilleans to be citizens of PNG before exercising political rights ensures a territorial connection, which would be lost if the two citizenships are separated from each other. An alternative would be to define citizenship of Bougainville by reference to the standard criteria of place of birth and descent that are used in a variety of combinations in most countries in the world. This approach was taken by PNG on independence in 1975.
PNG conferred automatic citizenship at the date of independence on any person born in PNG who had two grandparents born in PNG or in specified neighbouring islands.Under current PNG law, a person acquires PNG citizenship if he or she is born in PNG and has at least one parent who is a PNG citizen; is born outside of PNG but has at least one citizen parent and is registered; or has had some connection to the people and territory of PNG before naturalisation.8 Bougainville could develop citizenship requirements of its own, broadly along these lines, possibly accepting that birth in PNG and the ‘adjacent area’ as well as in Bougainville is acceptable for the purpose.
With either approach, there are likely to be cases where a person’s citizenship status is unclear. To accommodate these cases, other states in the Pacific also have set out a process for certain classes of people to register or to apply for citizenship (Dziedzic, 2020). Flexibility of some kind would be useful for prescribing the citizenship requirements for Bougainville.

Key questions in the development of a political and economic system for the island of Bougainville were discussed in two reports undertaken by the National Research Institute recently.

Symbols
Every polity uses symbols to reinforce its sense of political community and for use on official occasions. Symbols usually reflect the polity’s sense of its own identity, in terms of its people and their culture, its territory, its history and its place in the world. Bougainville already has a distinctive identity, which is the product of its story so far. A move to self-determination, whatever form it takes, will change Bougainville’s identity in some ways while leaving it unaltered in others. There is no exhaustive list of the symbols that a polity may have for these purposes. Bougainville already has many of the usual symbols: a flag, emblem, motto and anthem. Bougainville also celebrates commemorative days, including Autonomous Bougainville Government Foundation Day and Peace Agreement Commemoration Day. In connection with a move to self-determination, consideration might be given to whether these symbols adequately reflect the identity that Bougainville wishes to project, internally and externally. The answer could depend on the chosen form of self-determination. For example, the BPA and PNG Constitution presently require that official markings of the Bougainville Police and Bougainville Correctional Service include the national PNG emblem.
Changes in the relationship between PNG and Bougainville in consequence of self-determination may affect this practice and certainly would do so if Bougainville achieved self-determination outside PNG, whether as an independent state or in a form of free association. Self-determination may have other implications for Bougainville’s identity as well, which could be reflected in the symbols used by Bougainville and the circumstances in which they are used.
Self-determination may ultimately lead to the creation of new symbols. A Bougainville system of honours or awards is a possible example. In addition, self-determination may bring other changes to Bougainville that take on a symbolic character. To take one example: currency, which is considered further below in Part 5.2, can have a symbolic as well as practical function. As Part 5.2 explains, countries do not need to have their own currency; this is a choice for each to make. Some countries with their own currency also use it as a symbol.
Whatever the outcome of the consultations between the two governments, some changes to the Constitution of Bougainville are needed. The existing Constitution was made within parameters agreed in the BPA and reflected in the Constitution of PNG. It is expressly transitional, bridging the period of autonomy following the BPA and a decision on Bougainville’s future political status.
Both the Constitution itself and the process of making or changing it are relevant to self-determination for Bougainville. A new or renewed constitution would mark the beginning of a new collective identity for Bougainville, symbolising the unity of the people and signifying Bougainville’s new status to the rest of the world (Haysom, 2005). The Constitution also has practical significance for institution building, providing the basic framework for institutions of government and setting out their powers and functions.
Any form of self-determination will require some new institutions for Bougainville and some changes to existing ones, all of which will need a foundation in Bougainville’s Constitution. Exactly what changes are made, how they are made, and the future relationship between the Constitutions of Bougainville and PNG will depend in part on the form of self-determination.

  • If Bougainville achieved self-determination outside PNG, with no formal relationship with PNG other than as a close neighbour, this would be reflected in the terms of the Constitution, the range of matters for which it provides, and the mechanisms that it establishes for political and legal accountability.
  • If Bougainville achieved self-determination in a form of free association with PNG, this would be likely reflected in the Constitutions of both PNG and Bougainville, although the Constitutions need not otherwise be dependent on each other.
  • If Bougainville achieved self-determination on a basis that left it formally within PNG, significant constitutional changes still would be needed. In these circumstances, however, there would be a relationship of some kind between the two Constitutions, although it may not be the same as exists at present.
    On any of these scenarios for constitutional change, there is a further question for decision about whether Bougainville should amend the existing Constitution or make a new one. In principle, either is possible and there are advantages and disadvantages to both.

– Abridged from a National Research Institute research report (Reseach Report 8: Institution Building in Post-Referendum Bougainville) under its Referendum Research Project. This was releaseed along with Research Report 9: Increasing Revenues for the Bougainville Government.

About the authors
Anna Dziedzic is a Global Academic Fellow at the Faculty of Law, Hong Kong University, and co-convenor of the Constitution Transformation Network. She is a comparative constitutional scholar with particular expertise in the constitutional systems of the Pacific. She completed her PhD at Melbourne Law School in 2019, with a thesis on the use of foreign judges in Pacific island states, and has also published academic studies of citizenship, constitution making, federalism, foreign judges and Indigenous constitutions. She has worked cooperatively with international and local NGOs, government agencies and research institutions to address practical issues of constitutional change in the Asia-Pacific region.
Cheryl Saunders is a Laureate Professor Emeritus at Melbourne Law School and co-convenor of the Constitution Transformation Network. She works in the fields of comparative constitutional law and comparative public law more generally. She is a President Emeritus of the International Association of Constitutional Law and a former President of the International Association for Centres of Federal Studies.