The Commissions History
The Chairman of the first Law Reform Commission was Mr. Kabui, having relinquished his role as Attorney-General in November, 1994. The other members were the late Bishop Sir Duddley Tuti, K.B.E., O.B.E., Bishop Leslie Boseto, C.S.I. C.M.G., Mr. A. Radclyffe, ESQ and Alice Puia (Mrs.). The Secretary was Mr. David Firisua and the Personal Secretary was Madeline Waiwori (Mrs.).
The budget allocation for 1995 was $165,000.00.. There were two positions for research officers but were never filled due to lack of local professional manpower. One of these positions was later filled by an expatriate but soon became vacant again due to lack of funding from the Government.
The Minister had given the Law Reform Commission a number of references for their attention with no time limit for completion. The Chairman became the research officer for the Commission. He did one report on land below the high water mark. He also began work on the ownership of customary land in relation to the ownership of the timber resource on it and the law of treason but both were incomplete.
The Commission was also able to produce annual reports for 1995 and 1996. The annual report for 1997 was completed but remains unpublished for the same reason that the Chairman was unable to complete the work he began on the two references referred to above.
In May, 1998 the Chairman was appointed a judge of the High Court and he left the Commission. His resignation also saw the end of the Commission and its work. The staff of the Commission had to be re-posted elsewhere in the public service. The office had to be closed down and the office furniture and equipment re-allocated elsewhere. An attempt to continue as part-time Chairman was rejected by the then Chief Justice.
In 2005 Government Minister Maina appointed Mr. Justice Kabui as part-time Chairman to the Commission. The Minister also appointed other part-time Commissioners. They are Messrs Levo, Maenuu, Bishop Riti and Mrs Sarah Dyer. The Government at that time made no allocation of funds for the work of the Commission. There was then a Commission in place but it had no teeth to bite. That is, it had no office, no staff, no furniture or equipment and no funds.
When Mr. Justice Kabui retired as a judge in April 2006, he was immediately appointed the full-time Chairman of the revived Law Reform Commission.
For the year 2006, Government allocated $429,123 for the Commissions total budget. This is the Solomon Islands Government component of the 2006 budget. Of this, $115,515 had been set aside for recurrent costs such as utilities and travel costs for local officers. $313,609 were monies to cover salaries and allowances. But the total budget for 2006 was not enough to cover the full cost of operating a full-time Commission and support was sought from AusAID through the RAMSI Law and Justice Program.
The Law Reform Commission started from ground zero in 2006. All the existing posts were vacant on day one. When the Chairman was appointed, all the other posts continued being vacant. Seven posts had been created to be funded by the Government. They are the the Chief legal officer, Principal Legal Officer, three senior legal officers (all research officers), one Executive Secretary and one clerk. These are the supporting staff for the Commission. .
When the Commission was revivied in 2006 the Chairman initially had to operate from his old Chambers in the High Court with the approval of the Chief Justice. The Chairman only moved out of the High Court premises in October 2006 into a new temporary office located at Panatina Plaza. He was immediately joined by a Personal Secretary and a clerk. The rental and provision for furniture, equipment, etc were being met by AusAid through the RAMSI Law and Justice Program. In early 2008 the Commission moved to Kalala House near the High Court. . Recruitment of local staff commenced in late 2006 but the response had not been good. An adviser funded by the RAMSI Law and Justice program worked assisted in setting up the Law Reform Commission office and acted as the Secretary/Chief Legal Officer from Novembr 2006 to November 2008. . An additional adviser funded by the RAMSI Law and Justice program, who took on the role of the Research Manager, worked at the Commission from April 2008 to February 2012.Local lawyers were recruited to the posts of senior legal officer in 2007 and 2009.
In 1995, the then Minister of Justice and Legal Affairs referred to the Law Reform Commission ten matters that the Commission should attend to and report back to him. The first was the review of the law of Crown ownership of the foreshores or beaches up to the high water mark. Work has been done on this but the law has not changed.
The second matter was the review of the ownership of customary land and the ownership of the trees that stand on that customary land. The present law is that the ownership of customary land is not the same thing as the ownership of timber rights in the trees that stand on that land. Work has also been done on this but the law has not changed.
The third matter is the review of the law of marriage and the law of divorce. There are customary marriages and civil marriages co-existing. There are however two categories of civil marriages in Solomon Islands. One is the Islanders Marriages Act which applies to all Islanders. The other is the Pacific Islands Civil Marriages Order 1907 which applies to non-Islanders. There may be a need for a new civil marriage law for all apart from customary marriages. Should customary marriages be registered? This question needs an answer. The law of divorce had undergone a major change in England in 1969 and this change has reverberated throughout the Commonwealth. The single new ground for divorce now is the irretrievable breakdown of the marriage than proving adultery, desertion, cruelty etc as is the present law in Solomon Islands. There may be a good case for change in Solomon Islands.
The fourth matter is the review of the building bye-laws that we now have which are out-dated and ought to be revisited to ensure that all buildings in Solomon Islands are safe and secure for occupation.
The fifth matter is the review of the law on mental patients in Solomon Islands. Persons who suffer from mental conditions ought to be properly cared for and be protected from themselves or others whilst under treatment in custody etc.
The sixth matter is the review of the Penal Code and the Criminal Procedure Code. They are now outdated in parts and ought to be reviewed.
The seventh matter is the review of the law of treason. This law is about the overthrow of the Head of State or Government by force. The eighth matter is the review of the law of sedition. This law is about the unlawful behaviour against the Head of State or the Government etc. These two areas of the law are part of the Penal Code but are specific and ought to be treated specifically in terms of reviewing them.
The ninth matter is the review of all the penal provisions of the Customs & Excise Act which are extra-ordinarily low.
The tenth matter is the review of the Acts of the British Parliament which are of general application as on 1/1/1961 in England. Section 76 as read with Schedule 3 to the Constitution does provide for the filling up of gaps in the law of Solomon Islands until the National Parliament repeals that law and fills the gap. For example, we used to apply the English Arbitration Act, 1950 until the National Parliament enacted our own and repealed the English Arbitration Act, 1950. The problem we face is the difficulty in identifying the English Acts, some of which may be very old indeed and then modernizing them to suit our present circumstances in Solomon Islands.
There is therefore a lot to be done right now and in the future.
The main constraint is trained manpower and the working tools. Law reform is a specialized area of legal activity. The amount of legal knowledge involved is enormous. It is less glamorous and does not attract the first lawyer that comes out of law school. It however involves the active participation of the communities and stakeholders. The communities discuss the laws, express their views on them and the Law Reform Commission listens to them and makes its recommendations to the Minister. These recommendations will become Bills in Parliament, changing the laws for the better.
For us the road will be hard, long and tedious but the work has to be done. High quality and high standard of work are required in law reform everywhere and we are no exception. Our local lawyers have to be properly trained for this. We cannot rush it. We cannot cut corners. We need expatriate manpower in the formative years to pass on the knowledge and skills required in law reform. This assistance may take longer than expected but that is the price we have to pay for being a new Law Reform Commission starting from ground zero. We need this assistance and we must get it if we are to survive the formative years and become a vibrant law reformer in Solomon Islands.
We were appalled at the lack of response from local lawyers to our advertisements for the legal posts in the Commission. There is a general reluctance on their part to take up government posts due to lack of better terms and conditions of service for public service lawyers. The other problem is that even if there is enthusiasm on their part and they do come, they cannot assume senior posts immediately because of being raw in the job. Gaining experience is a great thing. It takes time and patience to get it. That is the golden rule. We break this rule and we are in for trouble.
Realizing this rather daunting task ahead of the Law Reform Commission, the Chairman and part-time Commissioner Levo visited the Fiji Law Reform Commission in September, 2006 to see the Fiji set up and learn from them. The Fiji Law Reform Commission was the most active and resourced Law Reform Commission in the Pacific ahead of PNG apart from Australia and New Zealand. The other Law Reform Commissions in other small Pacific states are either non-existent or inactive.
The Chairman and part-time Commissioner Levo discovered that the Fiji Law Reform Commission had done a lot despite its modest allocation of funds from the Government. They also discovered that the Fiji Law Reform Commission had been able to use off-shore funding to supplement Government allocation. That is, they have tapped UNDP and NZ aid money. In practice, it means securing money from aid donors and then contracting out the work for anyone who is willing and has the appropriate expertise to do the work required but always under the supervision and in consultation of the Fiji Law Reform Commission. Also, a number of reports have been produced by that Commission, some of which may be relevant to us.
We do know from the Fiji Law Reform Commission website that work has begun on the Penal Code and the Criminal Procedure Code, which in many ways, are similar to ours. The Chairman confirmed this on his visit to the Fiji Law Reform Commission. Whatever is being done there in that regard is of relevance to us because we are also required to do to our Penal Code and the Criminal Procedure Code references the very same that the Fiji Law Reform Commission has began to do. Unfortunately the coup in Fiji has resulted in the demise of the Fiji Law Reform Commission.
The Chairman had done a draft concept project proposal with the view of securing off-shore funding for the review of the Penal and Criminal Procedure Codes. This step was thought necessary to supplement the rather inadequate capacity of the Law Reform Commission to undertake major projects such as the review of the Penal and Criminal Procedure Codes. However, this approach has been superseded with AusAID now funding one position within the Law Reform Commission.
In the case of the Fiji Law Reform Commission project, the NZ Government gave the money and the Fiji Law Reform Commission contracted out the project. The best bidder was selected and entered into a contract with the Fiji Law Reform Commission to undertake the project for 12 months. The work program was agreed and the contractor commenced work and paid by instalments at each stage the project was completed to the satisfaction of the Fiji Law Reform Commission. The project was due to be completed at the end of December, 2006. Fiji should have a new Crimes Act, an amended Criminal Procedure Code and a new Sentencing Act as a result of this project. As noted previously because of the coup the final report covering the Penal Code and Criminal Procedure Code has not been tabled in Parliament, and therefore not available to the public.
However, we discovered that the work of the consultants was superficial in substance perhaps due to the timeline of 12 months being too short a time to complete both the Fiji Penal and Criminal Procedure Codes both of which was a massive project which would have taken longer than 12 months. Accordingly it does not seem to be appropriate to outsource the work of the Solomon Islands Law Reform Commission. A better approach is to build the policy expertise within the Solomon Islands so that law reform becomes a sustainable process.
In the meantime, the Law Reform Commission will do its best with the resources it now has at its disposal. We are of the view that we can do both the Penal and the Criminal Procedure Codes internally provided we have the right complement of staff. The review of the Penal and the Criminal Procedure Codes is a massive undertaking and will take well over 24 months or longer to complete.