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Abstract
The co-existence of plural legal systems throws up complex practical dilemmas. In the criminal sphere, the interaction between customary and state laws raises issues that are, perhaps, most graphically illustrated in the areas of culpability and sentencing. However, questions also arise as to criminal jurisdiction and procedure. This article examines two such questions concerning the position where an act is punishable both by the state and by a customary authority. Firstly, it considers which system has priority; and, secondly, whether a person may be punished by authorities in both systems, or whether punishment under one system is a bar to punishment under the other. This article considers these questions in the context of Solomon Islands, with some reference to neighbouring small island countries, where similar questions arise. It begins by identifying the relevant constitutional and statutory provisions. The issues to which these provisions give rise when they interact with the customary legal system are then explored in depth, with reference to pertinent case law from Solomon Islands and other comparable jurisdictions.
Notes
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 See, e.g. Constitution of Papua New Guinea 1975, sch 1.2.2; Constitution of Samoa 1962, art 111(1); Constitution of Solomon Islands 1978, sch 3, para 3; Constitution of Vanuatu 1980, art 95(3).
2 See, e.g. the Bill of Rights contained in the Constitution of Solomon Islands 1978, chapter II.
3 See, e.g. Constitution of Solomon Islands 1978 (the ‘Constitution’), s 75(1).
4 See, e.g. R v Loumia [1985-1986] SILR 158, discussed in Brown Citation1986.
5 See, e.g. Leota v Faumuina [1988] SPLR 1; Hala v R [1992] Tonga LR 7; R v Lati (Unreported, Supreme Court, Fiji, Tuivaga CJ, 14 January 2000) available via www.paclii.org at [1982] FJSC 3; FSM v Mudong and Benjamin 1 FSM Intrm 136 (Pon 1982). See further, Corrin and Paterson Citation2017, 72.
6 Formerly the High Commissioner’s Court: Western Pacific Orders in Council 1877 and 1893; Western Pacific (Courts) Order 1961.
7 See also Kasa v Biku (Unreported, High Court, Solomon Islands, Muria CJ, 14 January 2000) available via www.paclii.org at [2000] SBHC 62.
8 R v Kwatefena [1983] SILR 106, 107.
9 Local Courts Act Cap 19, formerly Native Courts Ordinance 1942. Many of these courts no longer operate due to lack of resources.
10 In R v Tutala (Unreported, High Court, Solomon Islands, Kabui J, 5 May 2004) accessible via www.paclii.org at [2004] SBHC 37, three customary punishments are referred to: death, compensation or banishment. In relation to compensation, see further, Akin Citation1999.
11 The most recent examples tend to be inflicted by individuals exacting revenge for wrongs committed against their family, see e.g. Loumia v DPP [1985/6] SILR 158; Sorcery revenge killing accused appears in court Citation2017.
12 A World Bank Survey reports that public whipping is common practice in Gilbertese communities in certain parts of the country: Allen et al. (Citation2013), 40.
13 See, e.g. Pusi v Leni (Unreported, High Court, Solomon Islands, Muria CJ, 14 February 1997) accessible via www.paclii.org at [1997] SBHC 100. This case is discussed in Corrin Citation2007, 151. See also, Ambrose v Keioi (Unreported, High Court, Solomon Islands, Brown J, 5 October 2016) accessible via www.paclii.org at [2016] SBHC 172.
14 For an example of such conflict, see, e.g. Pusi v Leni (Unreported, High Court, Solomon Islands, Muria CJ, 14 February 1997) accessible via www.paclii.org at [1997] SBHC 100.
15 See, e.g. the discussion in Corrin Citation2010. Also see State v Pokolou [1983] PGNC 3, N404 per Kidu C.J who recognised that, ‘In almost every case … Lawyers have not made any attempts either to produce evidence or material necessary for the Judges … to use to recognize custom or to develop the underlying law. Judges have not the time and resources to undertake their own researches in most cases and it is unfair for Lawyers to expect too much from judges who are already over worked and under rewarded. The Parliament of this country has failed to perform its duties as given to it by the Constitution.’
16 Papua New Guinea is the only jurisdiction in the region which has endeavoured to tackle this problem. See further Underlying Law Act 2000 (PNG), sch 2.1.1(3).
17 Solomon Islands Parliament has attempted to resolve some of these difficulties by passing the Customs Recognition Act 2000, however, it has never been brought into force, and has some serious flaws. See further Zorn and Care (Citation2002).
18 For a definition of ‘double jeopardy’ see Pearce v The Queen (1998) 194 CLR 610, 614: ‘The expression “double jeopardy” is an expression that is not always used with a single meaning. Sometimes it is used to refer to the pleas in bar of autrefois acquit and autrefois convict: sometimes it is used to encompass what is said to be a wider principle that no one should be “punished again for the same matter”. Further, “double jeopardy” is an expression that is employed in relation to several different stages of the criminal justice process: prosecution, conviction and punishment.’
19 Dausabea v R (Unreported, High Court, Solomon Islands, Cameron J, 4 July 2008) available via www.paclii.org at [2008] SBHC 30.
20 See, e.g. Muna v Billey (Unreported, High Court, Solomon Islands, Brown J, 11 December 2003) available via www.paclii.org at [2003] SBHC 9 where Brown J stated that, ‘[c]ustom is the principle responsibility of the Chiefs. This accords with schedule 3(1) of the Constitution which acknowledges the existence of customary law as “part of the law of the Solomon Islands”’ … ‘[t]he findings of the Chiefs in custom shall be afforded the status of law.’
21 See, e.g. R v Loumia [1985-1986] SILR 158; State v Pokolou (Unreported, Kidu CJ, 11 March 1983) available via www.paclii.org at [1983] PGNC 4, N404.
22 R v Loumia [1985-1986] SILR 158.
23 Words in a statute must be interpreted in context: Re Bidie [1949] Ch 121, 129.
24 Beckwith v R (1976) 12 ALR 333; Attorney-General v Western Samoa National Provident Fund (1970-79) WSLR 218.
25 Re Cuno (1889) 43 Ch D 12, 17.
26 See, for example Director of Public Prosecutions Reference (No. 1 of 1992); Director of Public Prosecutions Reference (No. 1 of 1993) (1993) 65 ACrimR 197, 203-204 per Malcolm CJ and Walsh J.
27 McCluskey v the Attorney-General (Unreported, High Court, Solomon Islands, Palmer, J, 27 August 1993) available via www.paclii.org at [1994] SBHC 33.
28 Maetia v R (Unreported, Court of Appeal, Los, J, 21 October 1994) available via www.paclii.org at [1994] SBCA 8.
29 R v Connolly [1964] AC 1254.
30 Toritelia v R [1987] SILR 4, 7, per Kapi JA.
31 See, e.g. Public Prosecutor v Kota (1993) 2 Van LR 659
32 R v Ngena [1983] SILR 1; K v T [1985-6] SILR 49.
33 Timo v R (Unreported, High Court, Solomon Islands, Palmer J, 19 May 2004) available via www.paclii.org at [2004] SBHC 44.
34 Section 11 of the Leadership Code (Further Provisions) Act creates the offence of misconduct in office.
35 An appeal in this case was dismissed and the Court of Appeal gave no further guidance on s 20: Dausabea v R (Unreported Court of Appeal, Solomon Islands, Goldsbrough P, Williams and Hansen JJA, 26 March 2009) available via www.paclii.org at [2009] SBCA 11.
36 Idris v Regina (Unreported, High Court, Solomon Islands, Cameron J, 3 July 2008) available via www.paclii.org at [2008] SBHC 29.
37 R v Wong Chin Kwee [1983] SILR 78.
38 R v Asuana [1990] SILR 201.
39 Buruka v R (Unreported, High Court, Muria J, 16 December 1991) available via www.paclii.org at [1991] SBHC 53. See also Rojumana v R [1990] SILR 132.
40 R v Sanga (Unreported, High Court, Wood CJ,1985).
41 R v Funifaka (Unreported, High Court, Solomon Islands, Palmer J, 6 June 1997) available via www.paclii.org at [1997] SBHC 31.
42 R v Tovo (Unreported, Criminal Case 16/1986).
43 Heath v Alabama, [1985] 474 US 82.
44 R v Kaupa (Unreported, Supreme Court, Papua New Guinea, Wilson, J, 25 September, 1973) available via www.paclii.org at [1973] PGSC 65.
45 R v Ngena [1983] SILR 1.
46 Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948).
47 Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953), as amended by Protocols Nos. 11 and 14.
48 See the discussion of the difficulties of applying the common law in Solomon Islands see, e.g. Maeaniani v Saemala [1982] SILR 70.