PACIFIC ISLANDS REPORT

Pacific Islands Development Program/East-West Center
With Support From Center for Pacific Islands Studies/University of Hawai‘i

By Steve Sharp

HONOLULU (Pacific Islands Report, June 9) – Australia’s "cooperative intervention" strategy in neighbouring Pacific states is threatening to unravel after a Papua New Guinea court recently found parts of the law governing a contingent of Australian police and civil servants based in the country to be invalid.

Despite recriminations on both sides for the bungled legislative foray, both sides have, at least publicly, put on a brave face for the prospect of the Enhanced Cooperation Program (ECP) getting back on track. But the challenge to the legal status of foreign personnel on pacific island soil is not confined to PNG. An important test case in August will examine the conduct of foreign police in the Solomon Islands against that country’s constitution.

While Australia’s donor position might allow it to win the battle of political wits against a divided PNG cabinet, a legal solution is far less certain.

Corruption and the "wantok" system of clan privilege is widely acknowledged to riddle the PNG civil service and police but the Supreme Court decision in mid-May has been viewed by some in Port Moresby in positive terms: one aspect of civil governance – an independent judiciary - is still fairly healthy. It defended the constitution, didn’t it?

The court found a number of provisions in the Enhanced Cooperation between Papua New Guinea and Australia Act - which came into force last August – violated PNG’s constitution. The ruling overturns some of the powers and privileges that the law sought to give to Australian personnel. Among them are police powers of arrest and the right to bear arms. But the issue generating the most heat in PNG was immunity from prosecution.

The legal wrangle over immunity was played out in Papua New Guinea one year ago when its government resisted legislation put forward for Australia’s $1 billion ECP package. The compromise - which allowed for 300 Australian personnel to enter PNG to take up positions with the government, judiciary and police – made the foreign contingent, at least in criminal matters, subject to both Australian and PNG law, known as "concurrent jurisdiction".

Contrary to some reports, the ECP law does not grant the visiting contingent blanket immunity from prosecution in PNG courts. Though there is an attempt in the legislation to avoid PNG law where offences are committed in the course of official duties.

For some classes of offences, the ECP law makes the Australians subject to Australian law. For some criminal offences, it allows for a "joint steering committee" to decide which laws – Australian or PNG – would take priority.

But this too was overturned by the court, since leaving such decisions to a committee undermined the powers of PNG police and prosecutors – enshrined in the constitution - to prosecute or not to prosecute.

A clause attempting to shield Australian police officers and civilian bureaucrats from PNG’s civil jurisdiction was also declared unconstitutional.

"It’s quite irregular," says Don Rothwell, a professor of international law at the University of Sydney, referring to immunity granted to foreign police and civilian employees. The only groups protected under international legal agreements are diplomats, heads of state and military personnel.

"The sovereign immunity enjoyed by the military is normal practice but the immunity of police and civilian contractors is irregular. It’s not within the norm," he says.

The ruling has left the ECP in limbo with some suggesting the civilian component will be allowed to stay. But some overturned provisions apply to all visiting personnel, not just police. Much of the resentment to the Australian police presence appears to have emanated from within the Royal Papua New Guinea Constabulary. However, the PNG police made contradictory noises about whether they wanted their AFP counterparts to stay or leave.

Similarly, Governor of PNG’s Morobe province, Luther Wenge, who launched the court proceedings, sent mixed messages. In April, following the security incident at Brisbane airport involving PNG’s Prime Minister Sir Michael Somare, The National newspaper reported Wenge calling for PNG to sever diplomatic ties with Australia and ban its food imports. But after the successful court challenge, the opposition member and lawyer was more conciliatory towards PNG’s largest donor.

"We should see each other as comrades…as friends. That’s the way we should look at it," Wenge told Radio New Zealand’s Dateline Pacific. When asked if he wanted the Australians to leave, he said: "Not necessarily. Come to the table and we talk."

The "setback" in PNG – as the Australian Foreign Minister called it - may be portentous for the Australian-led regional assistance mission in the Solomon Islands. It too has struck a legal snag in its attempt to rescue failing state institutions. The dispute is over a similar but more sweeping law that gives foreign personnel (mostly Australians) immunity from local Solomon laws, including criminal prosecution.

The Facilitation of International Assistance Act, which since 2003 has shielded the multinational intervention force - known as RAMSI - from local prosecutors is now being challenged on a number of fronts.

"There is too much concession for RAMSI," says Joseph Foukona, a law lecturer at the University of the South Pacific in Port Vila, Vanuatu. "If a Solomon Islander commits a crime, a RAMSI officer can arrest him under the laws that he or she is immune from. The scope of the laws, as applied to RAMSI, is unclear," he said.

Following a peace accord in 2000, fighting between rival Guadalcanal and Malaitan militants abated but the agreement left guns in the hands of leaders on both sides. The slide into lawlessness prompted Australia to propose a robust armed intervention of over 2,000 soldiers and police that started entering the capital Honiara 22 months ago.

The foreign police - now sourced from eleven countries - worked with the Solomon Islands police force and relying heavily on local intelligence, made more than 5,000 arrests and took 3,500 guns out of circulation.

While accepting that the intervention – based on an invitation from the Solomons parliament in July 2003 – conforms with international law, Foukona wants the local law that protects foreign personnel to be examined more closely.

"If blanket immunity remains, there will be no other legal option for the victim. RAMSI police are not accountable to the Police Commissioner; they are accountable to the Deputy Police Commissioner who is a senior Australian Federal Police officer. And this person is accountable to Canberra," he said.

RAMSI’s civilian Special Coordinator, James Batley, thinks otherwise:

"We thinks it’s working. We don’t think there’s a persuasive reason to change it."

He says the mission can, with the agreement of contributing governments, waive the immunity and subject RAMSI and its personnel to Solomon Islands law: "We’ll deal with it on a case-by-case basis," Batley said.

This is, in fact, what the mission did in April in the case of a local man - John Makasi - who accused RAMSI of violating his constitutional rights while questioning him over last December’s murder of RAMSI policeman Adam Dunning. RAMSI will contest the case in the High Court in August.

"The primary purpose is not to shield people who commit an offence; you need to protect people against vexatious and frivolous action," Batley says.

RAMSI has made it clear the waiver in this case is a one-off and does not draw any parallels between its immunity protection in the Solomons and the impasse in PNG.

"There are no implications for RAMSI in light of what’s happened in PNG," a RAMSI spokeswoman said from Honiara. "RAMSI is a regional mission operating in a different nation, under different circumstances."

Foukona believes Solomon Islanders are not aware of the implications of the immunity clauses. Although the disputed law states that RAMSI personnel should respect Solomon Islands law, an offender from the contingent can escape enforcement of criminal, civil, administrative and customary law.

He believes part of the problem can be traced to the fact that the law was drafted in Canberra and had little input from Solomon legal officers and limited debate in parliament.

"The policy thinking of the Solomons Government was very minimal," he added. The large number of Australian technical advisers, some in very senior positions in the bureaucracy, is causing disquiet among locals who feel left out of the reconstruction phase by an army of visiting experts.

"Disquiet comes with the feeling that this is not a partnership," says Solomons analyst, Paul Roughan.

He credits the largely successful law-and-order phase, which is now being consummated in criminal trials with the help of RAMSI prosecutors, to Solomon Islanders who "provided the huge atmosphere of goodwill to allow that to happen without bloodshed".

He describes the current state-building, government reform phase as "inserting people into institutions and making them look like they’re working".

"The gains for Solomon Islanders are not at all obvious," Roughan says. He cites growing internal conflict and disputation over the authority of local and foreign decision makers. A current dispute between the Auditor-General (a local) and the Accountant-General (a RAMSI appointee) over outsourcing (and therefore, the distribution of jobs) ended up in court.

On the other hand, he credits RAMSI with making great strides in revenue raising, difficult to achieve if foreign appointees are answerable to local bureaucrats.

"There’s a definite impression that they [RAMSI] are feeling their way. They cannot re-build state institutions purely from within," says Roughan.

Foukona believes the Solomons needs a framework other than the current blanket immunity - one that allows both local and foreign laws to govern the foreign contingents.

"I feel there should be concurrent criminal jurisdiction, as in PNG but without any other committee to determine the decision to prosecute or not. Under the Solomons act, the courts in the Solomons don't have jurisdiction to do with any criminal legal matters concerning RAMSI," he says.

PNG has already indicated it will not be changing its constitution to accommodate the ECP aid package. Nor will Australia allow PNG sovereign law to apply equally to its personnel as it does to PNG citizens. So what prospect is there of new legislation that satisfies both parties?

A possible solution favoured by Sydney University’s Don Rothwell – to overcome sensitivities over foreigners bypassing local law - is a principle borrowed from international criminal tribunal law, known as ‘complementary jurisdiction’. This means that Australia would have primary jurisdiction in certain cases, but if it failed to prosecute, jurisdiction would revert to the host nation. He says the host country can be reassured that individuals "will not enjoy complete immunity in the case of egregious acts".

However, he admits this will still have to dodge the constitutional hazards.

In the Solomons, James Batley believes RAMSI is partly a victim of its own successes, having raised expectations with its successful policing operation. He told a peace and conflict seminar in Brisbane in April that RAMSI is a long-term commitment to Solomon Islanders, perhaps 10 years, which is why his officials don’t talk about exit strategies. But like PNG, any number of disputes, including impatience with perceived lack of progress, can undermine confidence in an outside force.

To complicate matters, a shadowy group from Malaita – likely a re-grouping of members of the disbanded Malaita Eagle Force and including criminals still at large – has emerged to threaten a number of politicians, call for the resignation of the Prime Minister, Sir Allan Kemakeza and lay down a list of grievances. Their emergence coincided with a visit by a review team from the Pacific Islands Forum.

The Malaita Separatist Movement were reported by the Solomon Star newspaper, who interviewed a hooded spokesman last month, as singling out Australian members of RAMSI. "We don’t want to see any Malaitan police go together with RAMSI especially Australian officers," the report quoted him saying.

Another source of tension in the Solomons is prostitution in a climate of family breakdown and social unrest: "There are parks where girls are forced into prostitution to get money for the family," says Karlyn Tekulu, a local researcher. She has received unverified accounts of RAMSI officers paying for sex in a park near their headquarters.

"It’s just common knowledge with the RAMSI officers – stories that keep popping up about RAMSI officers and prostitution," she says.

Batley is confident that internal discipline can handle any cases that arise. He says the mission’s code of conduct has "an offence against fraternisation".

"If found guilty, they would be removed from the mission – sent home," Batley says. But the punishment would vary between national contingents.

The partnership with the people that brought RAMSI to this point is now being tested and Tekulu wants to see foreign personnel set an example against local corruption.

"I think RAMSI could be a role model in terms of leadership. The danger is that respect for RAMSI might die down."

Pacific Islands Report (www.pireport.org)

Copyright Steve Sharp. Unauthorized publication prohibited.