N2501

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

CR 1254 OF 1999

THE STATE

V.

JERRY SINGIROK
(‘Accused/Applicant’)

Waigani: Davani .J
2004: 9, 11 February

R. Auka for the State
M. Murray for the Accused/Applicant

Constitutional law – Application for immunity from prosecution – offence of sedition – Declaration of immunity for ‘crisis-related’ activities – purpose of and reason for Constitutional amendment No. 23 – Consideration of peace and reconciliation process in Bougainville – Constitutional Amendment No. 23 s. 344; Gazettal No. G126 dated 2.8.03

Criminal law – offence of sedition – speech by accused – whether ‘crisis-related’ activity – not immune from Prosecution – Criminal Code s. 54(1)(a)

Cases Cited:
Supreme Court Reference No. 3 of 2001 dated 18.1.02

Texts cited:
Bougainville Peace Agreement dated 30.8.01

11 February 2004

RULING
(Application for immunity)

DAVANI .J:	On 9th February 2004, the State tendered an Indictment alleging that on 17th March 1997 at Port Moresby, the Accused/Applicant (‘Applicant’) published seditious words and writing in his "address to the nation" when he in effect, called on the citizens of Papua New Guinea to force the Prime Minister, Deputy Prime Minister and Minister for Defence to resign within 48 hours and furthermore, when he also called on Papua New Guineans to join the Defence Force and the Police in rejecting the government of that day. 

Before the making of a plea, the Applicant’s counsel raised an objection to the indictment under s. 558 (1) (a) of the Criminal Code Act (‘CCA’) relying on Notice of Motion dated 6.6.03 and filed on 10.6.03 seeking various orders. The orders sought in the motion were;

1.	- a Declaration that the offence with which the Accused is charged with, is an offence to which immunity from prosecution applies; 

2.	- a Declaration that pursuant to s. 344 of the Constitution, the Accused/Applicant is immune from prosecution;

3.	- other orders.

The motion is supported by Originating Summons filed on 19.9.03 seeking the same orders.

S. 558 (1) (a) of the CCA reads;

"558.	Motion to quash indictment

(1)	The accused person may, before pleading, apply to the court to quash the indictment on the ground that –

(a)	it is calculated to prejudice or embarrass him in his defence to the charge; or
…"

Although the application for immunity does not fall within the ambit of s. 558 (1) (a), clause (d) of the gazetted Declaration states that any person charged with an offence covered by the Declaration, in this case s. 54 of the CCA, may at anytime after being charged, apply to the court for a Declaration that the offence he is charged with is an offence to which immunity applies. It is on that basis that the Applicant applies by way of motion and originating summons, process permitted under O. 4 R. 3 (a) of the National Court Rules, proceedings seeking a declaration of right:

The Applicant’s lawyer in submitting that the Applicant is immune from prosecution, relies on Constitutional amendment No. 23. This amendment to the Constitution is titled "Peace Building in Bougainville – Autonomous Bougainville Government and Bougainville Referendum" and was certified on 25.6.02 and gazetted in National Gazette No. G126 dated 2.8.03 (‘Constitutional amendment’). The Gazettal is titled "Declaration in respect of Immunity from Prosecution in respect of certain offences arising from crisis-related activities in relation to the Bougainville conflict" and which I will refer to throughout as the ‘Declaration’. Clause (d) of the Declaration is the provision counsel for the Applicant relies on in making this application.

Counsel for the State opposes the application submitting that although the offence with which the Applicant is charged, is an offence that carries the cloak of immunity as prescribed in paragraph (a) of the Schedule to the Declaration, that certain words uttered by the Applicant in his "address to the nation" exempt him from that immunity and which requires that he be charged and prosecuted.

The issue therefore is whether the Applicant’s "address to the nation" on 17.3.97 is a "crisis-related activity" as prescribed in s. 344(2) of the Constitutional amendment.

To answer that issue, it is necessary that the court set out in full s. 344 of the Constitutional amendment, the Declaration in the Gazettal and s. 54(1) (a) of the CCA, the section the Applicant is charged with. 

S. 54(1) (a) of the CCA reads;

"54.	Sedition

(1)	A person who –

(a)	conspires with any person to carry into execution a seditious enterprise; or
…
Penalty: Imprisonment for a term not exceeding three years."

S. 344 of the Constitutional amendment states thus;

"344.	IMMUNITY FROM PROSECUTION

(1)	The purpose of this section is to assist in the reconciliation process in Bougainville, and it is the intention of the Parliament that the provisions of this section be so applied as to assist in achieving this purpose.

(2)	There shall be immunity from prosecution in accordance with this section in respect of certain offences arising from crisis-related activities in relation to the Bougainville conflict.

(3)	The Head of State, acting with, and in accordance with, the advice of the National Executive Council, may by declaration published in the National Gazette, declare –

(a)	subject to Paragraph (b), the class or classes of offences to which the immunity is to apply or not apply; and
(b)	the nature of crisis-related activities which shall qualify the offences for the immunity; and
(c)	the period of time to which the immunity shall apply; and
(d)	such other matters as are necessary to ensure that the immunity can be affected.

(4)	Where a declaration has been made under Subsection (3), no charge shall be laid and no prosecution –
(a)	shall be initiated; or
(b)	if initiated, shall be pursued,
in respect of an offence –
(c)	included in the offences described pursuant to Subsection (3) (a); and
(d)	of a nature described in Subsection (3) (b); and
(e)	committed during the period specified in Subsection (3) (c).

(5)	The provisions of this section –
(a)	may be applied generally in respect of classes of offences and classes of circumstances without the need to identify alleged offenders; and
(b)	shall apply to offences whether or not a charge has been laid in respect of them."

The Declaration states the following;

"I, Silas Atopare, G.C.M.G., K.St.J., Governor-General, by virtue of the powers conferred by Section 344(3) of the Constitution and all other powers me enabling, acting with, and in accordance with, the advice of the National Executive Council, hereby Declare that, in respect of the immunity from prosecution granted by Section 344(2) of the Constitution, in respect of certain offences arising from crisis-related in relation to the Bougainville conflict:-
(a)	the classes of offences to which the immunity is to apply are as set out in the Schedule hereto; and
(b)	the crisis-related activities which qualify offences for the immunity are activities:-
(i)	in pursuit of the objectives of any of the parties to the conflict including, but not limited to, the ordering and or carrying out activities in the course of armed conflict or against a person believed to be a member or supporter of one of the parties to the conflict; or
(ii)	relating to the self-defence of an individual, family, group or party; or
(iii)	in defence of the community, public order and/or justice where normal constitutional processes could not be applied; or
(iv)	involving non-compliance with regulatory, licensing or similar requirements where compliance was impracticable on account of the crisis; and
(c)	the immunity shall apply in respect of offences committed during the period commencing 1st October, 1988 and ending:-
(i)	in respect of offences other than:-
(A)	those committed in activities referred to in Paragraph (b)(iv) above; and
(B)	those relating to illegal possession, ownership and control of firearms on 30th August, 2001; and
(ii)	in respect of offences committed in activities referred to in Paragraph (b)(iv) above – on the date on which compliance becomes practicable or on the date of establishment of the autonomous Bougainville Government, whichever shall first happen; and
(iii)	in respect of offences relating to the illegal possession, ownership and control of firearms – on the date of verification by the Director of the United Nations Observer Mission on Bougainville that the weapons to which the weapons disposal agreement applies are secured and contained under the supervision of that Mission, or, in respect of persons in control of the weapons collected pursuant to the weapons disposal agreement, on the completion of state 3 of that agreement; and
(d)	any person charged with an offence covered by this Declaration may, at any time after being so charged, make application to the court for a declaration that the offence with which he is charged is an offence to which the immunity applies, and upon the hearing of the application the onus of establishing that the immunity does not apply shall be upon the prosecution.

SCHEDULE

Any offence within Papua New Guinea jurisdiction specified in:-

(a)	Part II (Offences against Public Order) of the Criminal Code (Chapter 262; and
…"

S. 54 of the CCA falls within part (a) of the schedule in the Declaration referred to in s. 344 (3) of the Constitutional Amendment and, subject to s. 344 (3) (b), is an offence to which the immunity is to apply or not apply. (my stress). Counsel for the Applicant appears not to have considered s. 344(3) (b) of the Constitutional amendment focusing his submissions only on s. 344 (2) of the Constitutional amendment and clause (a) of the Schedule to the Declaration, which is entirely wrong. The document must be read as a whole.

The State agrees that s. 54 of the CCA falls within that class of offences immune from prosecution but the court should ask itself whether the "address to the nation" given by the Applicant on 17th March 1997 is a "crisis-related" activity as stipulated in s.344 (3) (b) of the Constitutional amendment and the Declaration, for it to qualify as an offence immune from prosecution. The "address to the nation" is attached to the Applicant’s affidavit sworn on 30.7.03 and filed on 1.8.03 and which is marked as annexure "C". The affidavit speaks for itself in that it was at the height of the Bougainville conflict that the government of the day then intended to secure the services of Sandline International, a mercenary group, to enter Papua New Guinea with the sole purpose of putting an end to the Bougainville conflict and to re-open the Panguna mine before the general elections of 1997. According to the Applicant’s affidavit, he, as the then Brigadier-General of the PNG Defence Force, formed the view that the contract that was to be entered into between the Sandline International and the Government of Papua New Guinea contained serious breaches and so used his position as Commander of the PNG Defence Force to put a stop to the mercenaries entry into Papua New Guinea. The Applicant also believed that with and by the intervention of Sandline mercenaries, that this would result in the murder of innocent citizens of Bougainville and Papua New Guinea.

The question the court should again ask is whether this is an activity that is "crisis-related." To answer this question, I refer to clause 344(3)(a) and (b) of the Constitutional amendment, clause (a) and (b) of the Declaration and clause (a) of the Schedule to the Declaration. I interpret these provisions to mean that although s. 54 of the CCA is an offence to which immunity applies (see s. 344(3)(a) clause (a) of Declaration and clause (a) of the Schedule to the Declaration), that it is subject to whether it is a crisis-related activity as provided by s. 344(3)(b) of the Constitutional amendment and clause (b) (i)(ii)(iii) and (iv) of the Declaration. The ‘crisis-related’ activities which qualify for immunity are set out in clause (b) (i)(ii)(iii) and (iv)of the Declaration. As referred to earlier, Applicants counsel has not addressed the court on this. Which therefore means that the arguments he raised in relation to the effects of the constitutional laws and protection of the law are all irrelevant and unnecessary because the only time immunity will apply to any offences covered in the Schedule to the Declaration, is if and when s. 344(3)(b) of the Constitutional amendment and clause (b)(i)(ii)(iii) and (iv) of the Declaration are fully satisfied. This is because the applicability of s. 344(a) is conditional upon whether the offence is "crisis-related." 

I will now consider whether the Applicant’s case  is a ‘crisis-related’ activity. In relation to this, the State submits that the Applicant’s ‘address to the nation’ is not in anyway related to the Bougainville conflict and hence, is not a ‘crisis-related’ activity. For me to properly answer that question, I must have recourse to the background and the reasons why the Constitutional amendment and Declaration were passed. Both Counsel have not made available to me copies of the Hansard of that period however, I am aware and which is public knowledge that these were passed after years of negotiations between the successive PNG governments, the Bougainville Revolutionary Army, the people of Bougainville, the Bougainville Resistance fighters and the governments of Australia, New Zealand, Vanuatu, Fiji, Tonga and others who made up the peace keeping forces or Peace Monitoring Groups on Bougainville. A special Supreme Court Reference SCR No. 3 of 2001 was also filed by the Attorney-General of Papua New Guinea, pursuant to s. 19 of the Constitution, seeking the court’s opinion on the powers of the Head of State to grant amnesty and pardon. A five-men bench consisting of Los, Hinchliffe, Sheehan and Injia .JJ headed by the former Chief Justice handed down a brief ruling on 8.1.02. One of the questions referred for an opinion was;

"8.	Do sections 176 and 179 of the Constitution prevent the Parliament from enacting an act of Parliament granting amnesty to a group of class or persons for omissions that may constitute criminal offences made during a defined period from being investigated, charged or prosecuted?

Answer: No"

So this in effect meant Parliament had power to pass legislation granting amnesty to a group of persons.

I also take judicial notice of the Bougainville Peace Agreement (‘Peace Agreement’) signed at Arawa on 30 August 2001 and which I have had recourse to in assisting me understand the background to the passing of the Constitutional amendment and Declaration and to reach a decision. Paragraph 340 (3) at pg. 71 of the Peace Agreement states;

"(a)	Reconciliation:
…
"34.	The process of negotiating this agreement has contributed to the reconciliation process, both within Bougainville and between the rest of Papua New Guinea and Bougainville. The Agreement itself is intended to further encourage the process, and among other things;
…
(e)	the arrangements for pardon and amnesty are intended to reduce tensions and divisions that could continue to flow from the conflict."

Also in that part on Reconciliation (above), the parties acknowledged the pain and suffering and loss by and amongst the people and acknowledged that where tensions and differences between groups remain unresolved, suffering would be intensified and peace threatened by the risk of conflict.

Again at pg. 69 of the said Peace Agreement, there is reference to amnesty and pardon. It reads:

"1.	Amnesty and Pardon

331.	The parties confirm that grants of amnesty and pardon (as agreed in the Lincoln Agreement) for all persons involved in crisis-related activities or convicted of offences arising out of crisis-related activities should be expedited, and will cooperate to ensure that they are."

Further, the Peace Agreement, under the part on its role and status, states:

"1.	This agreement is the basis for drafting the constitutional amendments and other laws, which the National Government will provide for implementation.

2.	The implementing Constitutional and other laws will state that they are intended to give legal effect to this Agreement.

3.	This Agreement:

(a)	will be used as a guide for implementation and to assist the 	courts in interpreting the constitutional and other laws, which give legal effect to this agreement.

(b)	is intended to be interpreted liberally, by reference to its intentions, and without undue reference to technical rules of construction." (see pg. 7 of Peace Agreement). (my stress).

So, based on all the above, I can safely say that the Constitutional amendment is the result of the Bougainville Peace Agreement and other agreements that preceded it. 

The parties to the conflict signed the Peace Agreement. It is necessary that I set them out because clause (b) of the Declaration refers to ‘parties to the conflict’. Is the Applicant a party to the conflict within the meaning of clause (b) of the Declaration? Those who signed the Peace Agreement, being parties to the conflict, were;

1.	Representatives of the Government of Papua New Guinea including the then Prime Minister
2.	Governor of the Bougainville Interim Provincial Government
3.	President, Bougainville peoples Congress
4.	Members for North, South and Central Bougainville
5.	Chairman, Leitana Council of Elders
6.	Deputy Governor, Bougainville Interim Provincial Government
7.	Vice-President, Bougainville Peoples Congress
8.	Chief of Defence, Bougainville Revolutionary Army
9.	Chairman, Bougainville Resistance Forces
10.	Representative of Bougainville Women

All the above are parties to the conflict. They are the people of Bougainville, the various resistance and armed forces and the Government of Papua New Guinea. It is the rebel and resistance factions who were involved in the conflict and it was their involvement in crisis-related activities, their wish for peace, their desire to surrender arms and cooperation by all for lasting peace that enabled the passing of the Constitutional amendment. Those who signed the Peace Agreement believed that lasting peace on Bougainville would be achieved if amnesty and pardon was granted to those involved in the conflict on the island, which included the surrender of weapons. I refer again to pg. 7 of the Peace Agreement to remind myself that the said agreement is the basis for the drafting of Constitutional amendments, which includes Constitutional amendment no. 23, that the implementing constitutional and other laws will state that they are included to give legal effect to this agreement. And this is what is stated in s. 344(1) of the Constitutional amendment, that the purpose of that section is to assist in the reconciliation process on Bougainville.

Clause (d) of the Declaration states that the onus is on the Prosecution to prove that immunity does not apply. The Peace Agreement states at pg. 7 and referred to above, that technical rules of construction should not apply. Clause (d) of the Declaration does not state whether it is the civil or criminal standard that is applicable. One can argue that because it is a criminal case, that the criminal standard of proof applies. However, because the Peace Agreement is specific as to how it is to be interpreted and because the Declaration is a product of the Peace Agreement, that the ordinary dictionary meaning of "onus" should be applied, and that according to the revised third edition of the Oxford Advanced Learners Dictionary of Current English, "onus" means that "it is for you (in this case the State) to supply the proof." And I have that proof.

I have seen that the ‘crisis-related’ activities are those that took place on the island of Bougainville and which people could seek amnesty or pardon from, to enable the fulfilling and completion of the peace process, which incidentally, still continues.

Relying on what is before me, I find that ‘crisis-related activities’ does not involve or include the Applicant’s "address to the nation" on 17.3.97, hence does not fall within the cloak of immunity provided by the Constitutional amendment and the Declaration.

I refuse the application.
____________________________________________________________________
Lawyer for the Accused/Applicant	:	Murray & Associates
Lawyer for the State			:	Public Prosecutor