AustLII Home | Databases | WorldLII | Search | Feedback

Alternative Law Journal

Alternative Law Journals (AltLJ)
You are here:  AustLII >> Databases >> Alternative Law Journal >> 2002 >> [2002] AltLawJl 78

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Care, Jennifer Corrin --- "Off the peg' or 'made to measure': Is the Westminster system of government appropriate in Solomon Islands?" [2002] AltLawJl 78; (2002) 27(5) Alternative Law Journal 207

‘Off the peg’ or ‘made to measure’: Is the Westminster system of government appropriate in Solomon Islands?

Jennifer Corrin Care[*]

In what ways has the structure of the government of Solomon Islands assisted or hindered attempts to resolve the recent period of conflict?

Imagine a country with a Westminster style of government enshrined in the Constitution. Imagine a sovereign state with a separation of powers and a system of parliamentary democracy. Imagine a resounding Preamble to the Constitution declaring and pledging commitment to the power of the people, to be exercised on their behalf by the legislature, the executive and the judiciary, and to democratic principles of universal suffrage and responsible government.

Now imagine a country with a fragmented society, spread between 26 islands and hundreds of small islets stretching over 1360 kilometres. Imagine that country has a population of 410,000, between them speaking not less than 63 vernacular languages and with a diversity of hair and skin colours and other physical features. Imagine the people of that country divided not only by language and physical features, but also by membership of different customary groups with their own laws and tribal allegiances.

Now imagine that these countries are one and the same, with all these ingredients intermixed. Imagine that this country has a mandate to govern within a framework of national unity but also to decentralise power and to cherish and promote different cultural traditions. Imagine that that the supreme law of the land embodies these contradictions without containing any mechanism for resolving conflicts between the competing demands.

‘A recipe for disaster’, you might say. And, in the case of Solomon Islands, where all these imaginings are reality, you would be right. Within the last four years, Solomon Islands has been brought from an optimistic developing nation to a country ruled by fear and lawlessness. It is easy to attribute this state of affairs to the civilian ‘coup’, outlined below, but given the incongruous foundations of government is it any surprise that it was unable to uphold the rule of law?

This article considers whether the breakdown of law and order owes more to the instability of the foundations of the rule of law than to current ethnic conflict. It considers whether the introduced system of law and government, which has been grafted from overseas roots into a somewhat hostile environment, can succeed. It examines some of the contradictions in the current legal system. The framework of government established by the Independence Constitution is briefly described and some of the incompatibilities with the indigenous order are highlighted. The article then considers whether democratic government and respect for the rule of law are, and have always been, illusory, by reference to case examples, which could be seen as portents of the current conflict.

The system of government

Central and provincial government

At independence, the Constitution of Solomon Islands established a central government. This was alien to the traditional style of government, where individual islands, let alone the whole country, were not controlled by any central authority. Instead, allegiance was owed to a clan or tribe group made of family groups sharing a common language and culture. The colonial administration, headed first by a Resident Commissioner and then the High Commissioner, provided an introduction to central government, although with acknowledged tribal links by dividing administration between four Districts.

The necessity for some devolution of power was stressed in paragraph (e) of the preamble to the Constitution, which states:

We shall ensure the participation of our people in the governance of their affairs and provide within the framework of our national unity for the decentralisation of power.

The Constitution, pursued this objective by providing that, ‘… Solomon Islands shall be divided into Honiara city and Provinces’. However, the details of this arrangement were left to Parliament, which was also passed the buck on how to accommodate traditional leaders in this arrangement, being directed to ‘consider the role of traditional chiefs in the provinces’.

Parliament enacted the Provincial Government Act in 1981, providing for a Provincial Assembly for each Province, consisting of elected members and appointed members.[1] In 1996, the 1981 Act was repealed by the Provincial Government Act 1996. This Act is noteworthy, as it departed from the principles of government by democracy, setting up new Provincial Councils, consisting not of elected members, but of ‘Chairpersons of Area Assemblies’.. In turn, Area Assemblies were to be made up of equal proportions of elected members and members appointed from chiefs and elders in the area. As a consequence, if all the Chairs of the Area Assemblies were appointed members, the Provincial Council could be made up wholly of non-elected chiefs and elders.

However, this interesting experiment in extended involvement of traditional leaders in provincial government was not to be. The 1996 legislation was challenged by the Guadalcanal Provincial Assembly on the basis that it was undemocratic and consequentially unconstitutional. The legislation was upheld by the Court of Appeal in The Minister for Provincial Government v Guadalcanal Provincial Assembly,[2] which acknowledged the Constitutional commitment to democratic principles in central government, but refused to carry this over as a requirement for provincial government. However, the political pressure generated by the case was too much and parliament subsequently passed the Provincial Government Act 1997, which repealed the 1996 Act and substantially re-enacted the Provincial Government Act 1981, returning the position to the status quo.

While all this means that, technically speaking, the role of traditional chiefs in provincial government has been ‘considered’, as required by s.114, it has certainly not been accommodated. The desirability of this involvement was stressed before Independence, but the drafter’s inability to depart from the pre-packaged model resulted in this being left for parliament to consider. The present arrangements between central and local government satisfy no one. The division of resources has always been the focus of grievances so, in the current economic climate, it is hardly surprising that pressure for change continues to grow.

The legislature

The separation of powers is underlined in the Preamble to the Constitution, which declares that:

All power in Solomon Islands belongs to its people and is exercised on their behalf by the legislature, the executive and the judiciary established by this Constitution.

The Constitution establishes the first of these organs of government, the parliament. The single chamber parliament consists of one member from each constituency, elected under a system of universal suffrage. This system of parliamentary democracy is foreshadowed by the Preamble, which pledges that, ‘government shall be based on democratic principles of universal suffrage’.

The system carries with it a host of practices and conventions. An important part of this is party politics, however it is doubtful whether this concept has translated well into Solomon Island’s society.[3] Traditionally, Solomon Islanders identified ‘government’ with an individual rather than a political party. A ‘Big Man’ or ‘Chief’ headed customary groups. In some, mainly Polynesian, areas the leader is a hereditary chief. More commonly, the leader is a person who has earned their place through hard work and a display of leadership qualities. Identification of government with an individual continued during colonial times, when the District Commissioner was regarded as representing government. On Independence, the country was faced with the unfamiliar idea of voting for the abstract concept of a party, rather than an individual.

Whilst there has been some recognition of party politics, mainly in the commercial centres, the system of voting for a wantok (someone from your cultural and language group) or the Big Man or Chief of your own customary group is even stronger. The present weakness of the party system can be seen in the breakdown of the allegiances of the current 50 members of parliament:[4]

People’s Action Party (social-democratic) 20

Association of Independent Members 15

Solomon Island Alliance for Change

(includes Solomon Islands Liberal Party) (liberal) 12

People’s Progressive Party 3

Labour Party 1

The 20 People’s Action Party members form the government along with 13 loosely grouped independents. Generally, the weakness of political parties has resulted in government by unstable parliamentary coalitions. Party allegiances and government leadership often change and frequent votes of no confidence merely highlight the lack of confidence in the system as a whole.

Voting in accordance with tribal allegiances, rather than for the best candidate, is an enduring practice. Analogies can be drawn with neighbouring Papua New Guinea, where fighting between rival tribes following the recent disastrous national election was referred to in an Australian newspaper as ‘election violence’. Three weeks after the election the death toll had reached 17, as people were stoned, axed, knifed and shot for voting for the ‘wrong’ candidate.[5]

Decision making by majority vote is also a novel concept in societies customarily governed by consensus. This fact had been recognised during an earlier stage of Solomon Islands development. In 1970, a Governing Council had been set up, with 9 ex officio members and 17 elected members. The Council operated on the committee principle and combined the functions of executive (during private sessions) and legislature (in open sessions). Members were divided into five committees, each with a responsibly for a particular aspect of government. The rationale was that decisions reached by discussion in committee would result in a style of government more appropriate and therefore more acceptable to Melanesian people. Unfortunately, the Council was not successful, divisions appearing between elected and unelected members and between personal, local and general interests. Following the recommendations of a select committee, in 1974 executive and legislative functions were again divided, this time between a Legislative Assembly and a Council of Ministers.

The executive

The Constitution provides that the executive authority of the people is vested in the Queen of England, as Head of State, acting through the Governor-General. The Governor- General acts on the advice of the Cabinet and is to be kept informed of the general conduct of government by the Prime Minister. The Prime Minister is elected from members of parliament. The Constitution provides for a maximum of 11 other Ministers, and this number may be increased by parliament. The ministerial system is not only an introduced system, but also a very expensive one, calling for the trappings of office, such as private secretaries, cars and entertainment allowances. Can a country the size of Solomon Islands, with a per capita income of US$712, afford this?[6] Bearing this question in mind, it is all the more surprising that parliament has exercised its power to increase the number of Ministers to 17 in 1993 and more recently to 19.[7] Ministers are appointed from MPs by the Governor- General on the advice of the Prime Minister.

The system of responsible government is specifically referred to in section 35 of the Constitution, which establishes a Cabinet consisting of the Prime Minister and other Ministers, which is ‘collectively responsible to Parliament’.. The principle of responsible government is underlined by the Preamble to the Constitution, which continues from the words set out under the last heading to pledge that government will be based on ‘the responsibility of executive authorities to elected assemblies.’

Cabinet changes occur frequently reflecting the view that Ministers are often chosen by the Prime Minster more with an eye to staying in power than as a reflection of personal qualities for the job. To the extent that responsible government means that Minsters are not all-powerful, but bear responsibility for their actions, this concept accords with traditional forms of governments, at least in most Melanesian communities. However, the fact that this responsibility is to parliament rather than to the Minster’s constituents may be a more difficult idea. This only makes sense within the context of national identity, which, if it exists at all, only unites Solomon Islanders when overseas.

The legal system

The Constitution establishes a High Court with unlimited original jurisdiction and a Court of Appeal. Judicial independence is buttressed by appointments made on the advice of the Judicial and Legal Services Commission which confer tenure until the age of 60. Removal by the Governor-General is only permitted after referral of the matter to a tribunal made up of current or former holders of high judicial office within the Commonwealth.

The Constitution also provides that parliament shall make provision for the application of laws, including customary laws, and in so doing shall have particular regard to the customs, values and aspirations of the people of Solomon Islands. Despite considerable delay, parliament finally did ‘make [some] provision’ in this regard in the form of the Customs Recognition Act 2000. However, this statute is not well considered and is unlikely to come into force. In the interim, the sources of law, which are set out in Schedule 3 of the Constitution, are in descending order of importance:

1. the Constitution;

2. Acts of Parliament of Solomon Islands;

3. United Kingdom Acts of general application, in force on 1 January 1961 (if there is no local legislation on point) and customary law; and

4. the principles of common law and equity, in force on 7 July 1978 (if they are appropriate to the circumstances of Solomon Islands and are not inconsistent with written laws or custom).

Whilst formal recognition of customary law reflects its importance, the present arrangements do not deal adequately with conflicts or provide guidance as to how such a fundamentally different type of law is to be administered in the formal system. However, at one level, the different systems of law proceed independently in their own spheres, without problems. Outside the commercial centres, introduced law is generally of no account. As explained by the Law Reform Commission of Solomon Islands, in its 1996 Annual Report:

People do not have the time to talk about law reform. It is too abstract and technical. They tend to have this attitude because there are already local customs to regulate their daily lives. Whiteman law is not their business. [para 10.11]

Where the two systems do come into contact it would be unfair to suggest that no attempts have been made to harmonise them. An important example is the Local Courts (Amendment) Act 1985, which introduced a prerequisite to the exercise of jurisdiction by Local Courts in customary land disputes. Under this Act it is necessary for the applicant to show that:

• the dispute has first been referred to the chiefs;

• all traditional means of resolving the dispute have been exhausted; and

• the chiefs have made no decision wholly acceptable to both parties.

This landmark piece of legislation seeks to divert disputes over customary land to indigenous tribunals to be decided in a customary way, rather than to ‘customary’ courts established on a Western model. However, there are difficulties with the procedure, not least the unwillingness of the unsuccessful parties to abide by the chiefs’ decision. There have also been difficulties in ascertaining who are the ‘chiefs’ in some areas. Both the right of appeal to the High Court (via the Local Court and the Customary Land Appeal Court) on matters of law and the identity of chiefs have been used to subvert the legislative intent[8] and sadly, the end result appears to be more litigation involving customary land cases than before the introduction of this Act.

While Solomon Islanders use the courts when it suits them, they do not regard the courts as the only, or even the dominant, means of dispute resolution. When introduced law is not favourable, or time or cost rule out resort to the formal system, more immediate means of dispute resolution may be employed. Some examples of this are discussed below.

Portents of the breakdown of the rule of law

The recent armed conflict has led to a flood of compensation claims, not just by the main parties but also by individuals. However, it should be borne in mind that neither the violence nor the compensation claims are anything new. There are numerous illustrations of the fragility of the rule of law in Solomon Islands. The following are just a few examples demonstrating lack of respect for the Western system of resolving disputes. When situations of conflict have arisen, whether with outsiders or other Solomon Islanders and particularly in relation to customary land, there has been no hesitation in resorting to one of the traditional methods of dispute resolution, which include claims for compensation and physical violence.

The Enoghae incident

In the late 1970s, funds from logging were an important contribution to the national and provincial economies in the newly independent Solomons. In the North New Georgia region of Western Province, logging negotiations by Levers Pacific Timbers (Levers) were stalled by disagreements as to ownership and representation. Protracted litigation concerning land ownership was bogged down in the High Court, and hampered by Western rules of civil procedure that were unsuitable for dealing with a dispute between nearly 2000 claimants, where representatives could not be agreed upon, and where the rights and issues were customary.. To bypass this, another Western solution was devised in negotiations between central and provincial government, Levers and representatives of the butubutu (the traditional kinship groups). Parliament passed the North New Georgia Timber Corporation Act 1979, which divided part of North New Georgia in accordance with customary boundaries and transferred timber rights, but not land ownership, to the Corporation. This dubious exercise compounded the problems arising from lack of recognition or understanding of traditional systems of landholding and land use. The Corporation’s Board of Directors, consisting of representatives chosen by tribal leaders, was empowered to grant logging concessions and receive and distribute the resulting royalties.

While the Act allowed Levers to proceed with logging, it did not resolve the underlying disputes. Divisions still existed as to who were the appropriate tribal leaders to choose directors and how the timber royalties should be divided up. In 1982 this culminated in a raid by about 2000 Jericho villagers on Levers logging camp at Enoghae. Workers houses and logging equipment were burned and vandalised, causing damage estimated at one million dollars. The conflict was never satisfactorily resolved from Levers point of view, and they abandoned logging in Western Province in 1986.

The Anuha Island incident

Anuha is a pretty island situated near the North Coast of Gela Island, in the Florida group. In the early 1980s the customary landowners, represented by Father Pule and his two brothers, went through the process of voluntary registration of the customary land, under the Land and Titles Act. The land was leased to an Australian company, which established a resort on the island. Unfortunately, the leasing arrangement did not go smoothly. Disputes arose about various matters, including whether compensation had to be paid for coconut trees and whether the landowners had the right to enter the resort area to fish and gather other food. The answer to the questions that arose had very different answers depending on whether one consulted the strict terms of the lease, which had been registered in Honiara, or the customary law on land ownership and use.

Things came to a head in December 1987, when Father Pule and members of his family group entered the resort armed with bows and arrows and spears. They barricaded off part of the resort and restricted the movement of staff and guests to one area. The resort manager radioed for help and the police arrived by boat. The ‘seige’ ended quickly without bloodshed and no criminal charges appear to have been laid. The company took civil action against Father Pule, in response to which he denied ever signing the lease. During the course of the litigation, most of the resort buildings were razed to the ground in an act of arson for which no one was ever brought to account. The civil proceedings were eventually settled.

The Bellonan/Malaitan incident

In November 1989, a notice was placed in the Central Market at Honiara, purportedly written by someone from Bellona, which was deeply offensive to the Malaitan community. Despite considerable doubt as to the true authorship or intention of this document, it resulted in serious civil disorder with bands of Malaitans rampaging through Honiara, causing substantial damage to shopfronts and other property. The Malaitans made claims for compensation for the insulting message. Ironically, whilst ignoring the rule of law and resorting to violence, the claim was made against the National Government as the price of ending the uprising. A meeting was held at the public playing fields between representatives of National Government and Malaita Province, represented by John Maetia Kaliuae, a former Minister. The government paid $200,000 ‘compensation’ to the Premier of Malaita in order to settle the matter.

While this remarkable gesture appeared to placate the majority of people present, a small group demanded the release of those people who had already been arrested for criminal offences during the disturbances. Maetia, the only leader still present, led the group towards the police station. Violence broke out when the group refused to respond to police requests to disperse and they had to be dispersed with tear gas. Paradoxically, while the government had endorsed the violence of Malaitan groups by paying compensation, Maetia was later charged and convicted for unlawful assembly, an offence contained in the Penal Code, which is based on introduced notions (R v Maetia [1990] SILR 23).

The recent armed conflict

These examples demonstrate that violence is not new to Solomon Islands. Hostility between the people of Guadalcanal, and those from Malaita is not new either, but had been simmering below the surface for some years. What is new is the fact that the combatants are armed and organised. The rival militia groups, the Malaita Eagle Force and the Guadalcanal Revolutionary Army (which later became the Isatabu Freedom Movement) were established in 1998. Fatalities in the conflict that followed occurred on both sides and an estimated 22,000 Malaitans were forcibly repatriated to their home island. Malaitans had composed a large percentage of the workforce (about 60% at Solomon Islands Plantations) and had dominated the public service.

During the fighting many expatriates and Solomon Islanders left the country and commercial activity ground to a standstill. The conflict came to a head when the Prime Minister, Bartholomew Ulufa’alu, was placed under house arrest by the Malaita Eagles and eventually forced to resign. In October 2000, the rival groups signed the ‘Townsville Agreement’ between the Solomon Islands Government and the Guadalcanal and Malaita Provincial Governments, by which the militia groups pledged to disarm and work towards a peaceful resolution of issues of land ownership and compensation.

There are many more examples like those outlined above. The first two cases illustrate that where introduced law, whether in the form of legislation (the North New Georgia Timber Corporation Act, in the Enoghae incident) or common law (the binding contract to lease in the Anuha case) is unfavourable it will be blatantly ignored. In the last two cases, the government has endorsed lawlessness by making or endorsing compensation payments, which could be seen as amounting to extortion. While attempts may be made to justify compensation claims on the ground that this is a customary method of dispute resolution, the demand for money with menaces bears little resemblance to the voluntary handing over of customary goods as a gesture of thanks or request for forgiveness.

The compensation mentality is a serious obstacle to restoration of law and order and progress to economic recovery. To give just one further example, attempts to reopen Solomon Islands Plantations Limited’s palm oil production business (which claimed to contribute 20% of the country’s national income and employed more than 2000 workers) were met by claims by local landowners for compensation and rental payments. Commonwealth Development Corporation, which owns 68% of the company (the Government of the Solomon Islands owning 30% and landowners the remaining 2%) has since indicated that it is pulling out of Solomon Islands and the government is looking for a buyer to take up its shares.

Where to from here?

Despite the Townsville agreement and the partial success of the arms decommissioning exercise, the Solomon Islands is still at crisis point. The economy is in tatters, most businesses having closed, and many skilled people, both local and expatriates, have left the country.[9] It will take years and a great deal of money to rebuild not only business but also confidence and trust. The Constitution and the institutions it embodies have been exposed by the ‘coup’ as ostentatious pageantry.

Before rushing to re-establish and further entrench the Westminster style of government, consideration should be given to whether this system is appropriate. Given the geography of the country and the lessons to be learnt from history, local government must be high on the agenda for discussion. Provincial government was discussed during the Townsville negotiations, and the resulting agreement embodied a clause committing the Government to rewrite the Constitution in such a way as to give more power to the provinces (Part 4, clause I(b)). Provincial autonomy also dominated discussion at the Premieres Conference in Buala in November 2000, where a Communiqué was signed calling for constitutional amendment to implement a ‘home grown’ ‘state government system’, with each province to become a state with its own constitution and legislature.

The Buala Communiqué was submitted to Cabinet, which responded by establishing a Task Force to revisit the 1987 Constitutional Review Committee. That Committee, which had included such political heavyweights as Sir Peter Kenilorea and Solomon Mamaloni, had called for abolition of foreign value systems and concepts and the introduction of a home grown, more traditional system in a new national Constitution. The Task Force presented a report on 29 May 2000, proposing that Solomon Islands become a sovereign democratic federal republic. The head of the state would be the president, elected from amongst indigenous citizens by members of the federal parliament and the congress of governors, made up of state governors. Provinces would become states, headed by state governors, elected by state parliament members and a newly formed council of chiefs. The possibility of the formation of three more states was included in the report.

There are two obvious problems with this proposal, the primary being resources. Can the country afford such a system that multiplies the cost of a head of state by a number between 9 and 12 (depending on whether only the existing nine provinces become states or the option to add up to three more is exercised). The second is whether a federal system, any more than a unitary system, is an appropriate system. Can the majority of citizens understand it and can it succeed if they do not? There is little evidence of consultation and those involved might be regarded as having a vested interest in trading in their Provincial Membership for the grander mantle of State office.

While the subsistence economy in rural areas has been a lifeline for many, it is too late to go back to customary societies. A purely traditional way of life may no longer exist, arguably having been perverted by the culture of capitalism. Even if it did, many do not want it. A generation has grown up with tee-shirts, thongs and videos. Further, the country must begin again on the road to economic self-sufficiency and economic prosperity and, to compete in the commercial arena, it requires a national identity to represent the country. What is required now is investigation of all the interests and issues and an informed debate on the best way of proceeding. Rather than papering over the cracks, a system should be sought which is relevant to, and consequently accepted by, people from all parts of the country. As in the past, overseas assistance will be needed, but even there a change is required. Offers of help from other countries often seem to start off on the wrong foot: a statement of, ‘what we can do for you’ may be less helpful than the question, ‘what can we do to help’.


[*] Jennifer Corrin Care teaches law at the University of Queensland, having formerly lived and practised law in Solomon Islands.email: j.care@law.uq.edu.au© 2002 Jennifer Corrin Care

[1] As originally enacted, s.14(2) provided that no more than ten appointed members should represent traditional leaders. In 1986, this subsection was repealed, leaving no mention of traditional leaders.

[2] Unreported, Court of Appeal, Solomon Islands, CAC 3/97, 11 July 1997.

[3] See further Alasia, S., ‘Party Politics and Government in Solomon Islands’ Discussion Paper No 97/7, Australian National University, State, Society and Governance in Melanesia Project.

[4] Derkson, W., ‘Elections Around the world’, <http://www. electionworld.org/election/solomon.htm> .

[5] Courier Mail, 10 July 2002, p.17.

[6] Hou, Rick N., ‘An Overview of Solomon Islands Economy: The Effects of the Ethnic Tensions and Policy Implications’, Paper presented at the State, Society and Governance in Melanesia Workshop, 24 to 26 October 2001, Australian National University, Canberra.

[7] STOP PRESS: On 1 October 2002 the number of ministries was reduced to 10 in an effort to reduce expenditure.

[8] See, for example, Nelson Lauringi and Others v Lagwaeano Sawmilling and Logging Limited and Others, unreported, High Court, Solomon Islands, cc 131/97.

[9] At the end of July 2002, Solomon Islands Broadcasting Corporation Online reported that Solomon Islands Government had recorded a deficit of 43.8 million dollars for the first six months of the year.


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/AltLawJl/2002/78.html