In The Matter of An Application By Paul Tupuru Buka (2005) N2796

• Jurisdiction: Papua New Guinea
• Citation: (2005) N2796
• Date: 22 March 2005
• Docket Number: CR No 168 of 2005
• Court: National Court
• Year: 2005

Full Title: CR No 168 of 2005; In The Matter of An Application By Paul Tupuru Buka (2005) N2796

National Court: Cannings J

Judgment Delivered: 22 March 2005

1 Constitutional law—criminal law—immunity from prosecution—offences arising from crisis–related activities in relation to the Bougainville conflict—applicant charged with one count of wilful murder, two counts of attempted unlawful killing and two counts of unlawful deprivation of liberty under the Criminal Code—application for declaration that the offences with which the applicant is charged are offences to which the immunity from prosecution granted by Constitution, s344(2) (immunity from prosecution) applies—declaration by Governor–General under Constitution s344(3)—three criteria to be satisfied for immunity to apply, re: classes of offences to which the immunity applies, nature of crisis–related activities which shall qualify the offence for immunity, period of time to which the immunity applies—onus of establishing that the immunity does not apply on the prosecution—whether the three criteria are satisfied—proof of the nature of crisis–related activities—no rule of law applicable or appropriate—Constitution, Sch2.3 (development etc of the underlying law)—formulation of rule that judge should examine depositions before ruling on criteria—prosecution did not object to application for declaration—nonetheless duty of court to be satisfied that three criteria exist—application upheld—declaration made by court—effect of declaration.

2 Supreme Court Reference No 3 of 2001; Special Reference by the Attorney–General re Proposed Bougainville Amnesty (2002) SCR No 3 of 2001 (Unreported and Unnumbered Supreme Court judgment (Amet CJ, Los J, Hinchliffe J, Sheehan J, Injia J) dated 18 January 2002), The State v Jerry Singirok (2004) N2501 referred to

RULING ON APPLICATION

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Cannings J:

INTRODUCTION

This case is about immunity from prosecution. A Bougainville man has been charged with various criminal offences. He says that a constitutional immunity applies to those offences as they arise from crisis–related activities in relation to the Bougainville conflict. He is applying for a declaration that the immunity applies. If he succeeds, the prosecution of those offences cannot be pursued.

BACKGROUND

During the period from the late 1980s to the late 1990s the province of Papua New Guinea known as North Solomons or Bougainville underwent a great upheaval. There was an armed insurrection against the State. This became known as the Bougainville crisis or conflict. There were a number of parties to the conflict, including the Bougainville Revolutionary Army (BRA); the Papua New Guinea Defence Force (PNGDF); the Police Force; the National Government and the Bougainville Resistance Force. Many lives were lost.

In the late 1990s a serious peace process commenced, involving many parties, culminating with the signing of the Bougainville Peace Agreement at Arawa on 30 August 2001. Central features of that agreement were that Bougainville would be granted significant autonomy; provision would be made for a referendum on independence for Bougainville; there would be mass disposal of weapons to be supervised by a United Nations Observer Mission; and an 'amnesty or pardon' would be granted to persons involved in the conflict. The Constitution of the Independent State of Papua New Guinea (the National Constitution) would be amended to give effect to the agreement.

CONSTITUTIONAL OVERVIEW

Constitutional Amendment

In 2002 the National Parliament duly made a law called Constitutional Amendment No 23, Peace Building in Bougainville—Autonomous Bougainville Government and Bougainville Referendum. This law added a new Part XIV (Bougainville Government and Bougainville Referendum) to the National Constitution.

Part XIV consists of the following divisions:

• Division 1—Preliminary, s276–s278;

• Division 2—Arrangements for the Establishment of Bougainville Government, s279–s287;

• Division 3—Division of Functions and Powers Between National Government and Bougainville Government and transfer of functions and powers to Bougainville Government, s288–s299;

• Division 4—Powers and functions of the Bougainville Government and Matters relative thereto affecting other Provisions of this Constitution, s300–s323;

• Division 5—Fiscal Arrangements, s324–s329;

• Division 6—Intergovernmental Relations and Review, s330–s337;

• Division 7—Bougainville Referendum, s338–s343;

• Division 8—Immunity from Prosecution, s344;

• Division 9—Miscellaneous, s345–s349.

Prior to the addition of Part XIV Papua New Guinea already had one of the world's longest constitutions. The new part added more than 70 new sections. Division XIV.8 consists of only one section, s344, which deals with the issue of immunity. That is the critical provision for the purposes of the present case.

S344 commenced operation on the date of certification of Constitutional Amendment No 23 of 25 June 2002. The other sections in Part XIV commenced operation on 7 August 2003. (See the commencement provision of Constitutional Amendment No 23 and National Gazette No G103 of 2002.)

New Organic Law

In 2002 the National Parliament made the Organic Law on Peace–Building in Bougainville—Autonomous Bougainville Government and Bougainville Referendum, which gave further effect to the new Part XIV of the National Constitution, in accordance with the Bougainville Peace Agreement.

Bougainville Constitution

A Bougainville Constitutional Commission was established under Part XIV. It consulted with the people of Bougainville and prepared a draft Bougainville constitution. A Bougainville Constituent Assembly was established, also under Part XIV. It considered and debated the draft constitution and consulted with the National Executive Council. Then on 12 November 2004, at Buin, it adopted the Constitution of the Autonomous Region of Bougainville (the Bougainville Constitution). The Governor–General endorsed the Bougainville Constitution and on 10 December 2004 it was published in the National Gazette.

The Bougainville Constitution consists of a preamble, 26 parts (containing 241 sections) and 10 schedules. Some provisions have already come into effect: the provisions of Part XXV (First Bougainville General Election and First Meeting of House of Representatives), together with such other provisions as are necessary to enable the first general election of the President of the Autonomous Region of Bougainville and members of the House of Representatives (the Bougainville Legislature). They came into effect on 11 December 2004. The remainder of the Bougainville Constitution will come into effect on the day fixed for the return of the writs for the general election, 9 June 2005.

THE PRESENT CASE

It is within the above historical and constitutional context that the present case arises. In 1994 and 1995 the applicant, Paul Tupuru, was arrested and charged with a number of offences under the Criminal Code. The offences are alleged to have been committed in 1991 and 1992 in south Bougainville. On 15 February 1995 the District Court at Buka committed him for trial.

On 9 March 2005 Senior State Prosecutor, Mr Rangan, presented two indictments to me, constituting the National Court, at Buka:

• one indictment charged the applicant with the wilful murder of Paul Harepa at Dusei in the Buin area of south Bougainville on a date unknown in 1991;

• the other indictment charged the applicant with two counts of unlawful deprivation of liberty in relation to Joshua Kangku and Jeremiah Timpa and two counts of attempting to unlawfully kill Joshua Kangku and Jeremiah Timpa, and all these offences were allegedly committed at Dusei at various dates from 1990 to 1992.

I endorsed the indictments. Then Mr Rangan began to set out the background of the case. In the normal course of events the accused person would then have been arraigned, ie he would have had the allegations formally put to him and asked to plead guilty or not guilty. However as Mr Rangan unravelled the allegations it became apparent that there might be an issue of immunity to be addressed. I suggested to both counsel that they should look into the issue and consider their positions.

On 11 March 2005 the applicant's counsel, Mr Siminji, indicated that he wished to make an application for a declaration of immunity.

On 14 March 2005 the application was heard. This is the ruling in that...