Constitutional Implementation for Sustainable Peace Addendum: Update on the Bougainville case study

Abstract

Peace agreements made in conflict-affected settings sometimes call for constitutional change. A question arises, in these circumstances, about the significance of constitutional implementation for sustainable peace. Implementation includes incorporation in the text of a Constitution, which may be difficult enough. It potentially goes further, however, to embrace the working of the Constitution in practice, or substantive implementation. Substantive implementation is an issue whenever a Constitution is made or significantly changed. This project explores the hypothesis that textual implementation alone is unlikely to be sufficient for sustainable peace and that substantive implementation also is required.

The project has developed an analytical framework for understanding the connections between Peace Agreements and Constitutions. The framework distinguishes between textual and substantive constitutional implementation. In relation to the latter, it identifies three aspects of substantive implementation that require attention: technical implementation, the interpretation of constitutional provisions and cultural adaptation to change. It argues that both the process and the outcomes of constitutional implementation, thus understood, are potentially relevant to sustainable peace.

The phase of the project of which this paper is part tests this analytical framework through a case study of the implementation to date of the Bougainville Peace Agreement. Bougainville is a region within the state of Papua New Guinea. It experienced civil conflict from 1988 until the signing of a peace agreement in 2001, which gave Bougainville a high degree of autonomy and guaranteed a deferred referendum on its future political status. A first report on this case-study, ‘Constitutional Implementation for Sustainable Peace’ (SSRN id 3442666) examined the textual and substantive constitutional implementation of the Bougainville Peace Agreement until mid-2019.

This paper provides an Addendum to the first report. It updates the case study and the findings to take account of events to the end of 2020, including the referendum on independence and the Bougainville elections that followed. It foreshadows the inter-governmental consultations on the outcome of the referendum which will get underway in 2021. It also makes some observations on the role of the judiciary in interpreting and applying the constitutional provisions that can be traced to the Bougainville Peace Agreement.

The paper revisits the conceptual problem of the relationship between peace agreements and constitutions. We regard the two sets of instruments as distinct, but accept the need to resolve the challenges that arise when the resolution of conflict requires constitutional change. Our study suggests that one reason for the relative success of constitutional implementation in Bougainville, at least to this point, lay in carefully and explicitly managing the links between the Peace Agreement and the Constitutions of both PNG and Bougainville at the points of peace making and constitution making. Others may be able to learn from this experience.