Concept: Judicial System
Details
Prior to the establishment of the British Protectorate in 1893, the British 1872 Pacific Islanders Protection Act and its 1875 amendment enabled naval vessels to intercede in the labour trade, and from 1868 Queensland and Fiji also had acts and regulations to control the trade in Melanesia. In 1877, the first Western Pacific Order in Council created the office of High Commissioner for the Western Pacific, with a jurisdiction 'in, over and for the Western Pacific Islands' not being 'within Her Majesty's dominions, nor within the jurisdiction of a civilized power'. Article 12 established a High Commissioner's Court for the Western Pacific, which as far as circumstances permitted was based on the principles of and in conformity with statute and other law in England. The High Commissioner had power over all British subjects (and in certain circumstances, others) and their vessels within the Western Pacific, and was empowered to appoint Special Commissioners for particular assignments, Deputy Commissioners for civil or naval duties, Judicial Commissioners with legal knowledge and experience, and later, an Assistant Commissioner. The Chief Justice of Fiji and every other judge of the Supreme Court of Fiji was by virtue of his office a Judicial Commissioner. The High Commissioner appointed Deputy Commissioners on behalf of the monarch. The High Commissioner's Court consisted of the High Commissioner, the Judicial Commissioners and the Deputy Commissioners, and in it was vested all of the civil and criminal jurisdiction of the British Solomon Islands Protectorate.
The Court of a Judicial Commissioner had powers similar to those of the superior courts in England, and the Deputy Commissioners had civil jurisdiction in common law, equity and bankruptcy, with a limited jurisdiction in probate. They also had criminal jurisdiction in respect to offenders not punishable with seven years penal servitude or upwards. (AR 1928, 10) A Judicial Commissioner's Court could also impose a monetary penalty of less than £50, without imprisonment. The Court of Appeal was the Supreme Court of Fiji. There was no provision for formal appeal in criminal cases, but the powers of remission and commutation were vested in the High Commissioner. All sentences of imprisonment exceeding six months or fines exceeding £100, when passed otherwise than by the High Commissioner, had to be submitted to the Court of Appeal for review. German claims, and therefore German law, applied to the northern areas of the Solomon Islands, as far south as Isabel Island from 1886 until 1899, when the Protectorate's border was moved north to between Bougainville and the Shortland Group (q.v.; see BSIP, Proclamation of). Apart from naval patrols-naval captains were all Deputy Commissioners-and the occasional visit by a roving Deputy or Special Commissioner, although the legal apparatus existed, in practice there was little law enforcement, and the legal system never applied to indigenous peoples. (AR 1933, 13; Boutilier 1984b, 1-6)
The powers in the 1870s Acts and the Pacific Order in Council were bolstered by the Foreign Jurisdiction Act 1890, which allowed Great Britain to exercise jurisdiction over areas where she had 'power' but no formal treaty. The formal British Solomon Islands Protectorate's legal system was based on the Pacific Order in Council of 15 March 1893, which amended and consolidated the Western Pacific Orders in Council of 1877, 1879 and 1880 and provided for enforcement of the law in force in England. It is a moot point whether British authority actually existed, because the rationale for a Protectorate included the exchange of sovereignty for protection, and there was no attempt to negotiate this exchange in the Solomon Islands. The actual cession was a legal fiction, and as James Boutilier noted, there was 'a fundamental uncertainty as to whether the Solomon Islanders were even subject to those provisions'. (Boutilier 1984b, 25; see also Scarr 1967a)
The first Chief Magistrate and Legal Adviser to the Protectorate was appointed in 1913: twenty-six-year-old Isaac Grainger Bates, who remained until 1923. He was replaced in 1924 by the incompetent N.W.P de Heveningham, who stayed until 1928. In the interim, R.C.D. Higginson, Chief Police Magistrate in Fiji, was appointed as a Judicial Commissioner of the High Commissioner's Court for the purpose of dealing with cases arising from the 1927 murder of District Officer William Bell (q.v.) and his party at Sinalagu in east Malaita. Sir Harry C. Moorhouse was appointed by the Secretary of State as a Special Commissioner to inquire into this incident and the murder of policemen on Guadalcanal a few months before. He was accompanied to the Protectorate by H. G. Pilling, Secretary to the High Commissioner for the Western Pacific. (AR 1928, 3-4) The next Chief Magistrate was P. C. Hubbard, who arrived as a Cadet in 1928 and took over the position in 1930. He, too, stayed for four years, after which the post was vacant from 1934 to 1937, during the Depression, until D. R. McDonald filled it for a year. The last prewar incumbent was Ragnar Hyne, former Chief Justice of Tonga. (Boutilier 1984b, 44)
Under the Order in Council, the High Commissioner could make Queen's Regulations in respect to matters not covered by the Order in Council, subject to disallowance by the Secretary of State. The Courts of the Protectorate were the High Commissioner's Court for the Western Pacific and later the district Native Courts. The High Commissioner's Court consisted of Judicial Commissioners and Deputy Commissioners. The Chief Justice and the Pusine Judge of the Supreme Court of Fiji were Judicial Commissioners, the former being the Chief Judicial Commissioner. The senior judicial officer of the Protectorate was a Judicial Commissioner appointed for the Protectorate. A number of administrative officers held commissions as Deputy Commissioners of the Protectorate. The High Commissioner's Court, when held before a Judicial Commissioner, had the full original jurisdiction of a supreme court. When held before a Deputy Commissioner, this Court had no jurisdiction in matrimonial, Admiralty or lunacy cases, or in criminal cases where the offence was one punishable with death or imprisonment for seven years or more.
There were several major differences from the English system. The Solomon Islands legal system accepted oaths sworn by non-Christians-the vast majority of Solomon Islanders at that time. Any affirmation or declaration that was considered binding on the conscience was accepted in lieu of an English-style oath, declaration or affidavit. The wording of the new legal situation in the Protectorate was that 'crimes, offences, wrongs, and breaches of contract against or affecting the person, property, or rights of natives or foreigners committed by persons subject to' [the Order] were henceforth 'punishable or otherwise cognizable in the same manner as if they were committed against the person, property, or rights of British subjects'. This was a major departure from earlier concentration on British subjects. (Article 23, 579, quoted in Boutilier 1984b, 13) Another change was that serious criminal matters-crimes punishable by death or more than seven years in goal-were tried close to the place where the person was charged. Offenders were not usually transported to court; the court came to them in the form of a naval captain, a Judicial Commissioner or a District Officer, although the latter could not try the more serious cases. There was another major difference: 'native or local law or custom whether relating to trade, commerce, revenue, or any matter' was acknowledged and could be included under the 'Queens Regulations', so long as the customs were not repugnant to British law. District Officers had to be cognizant of local customs and some estimates suggest that as much as 75 percent of court decisions were based on local customs. (article 108: 601, in Boutilier 1984b, 15, 1983, 50)
The District Officers were all Deputy Commissioners of the Western Pacific High Commission, which gave them magisterial powers. The High Commissioner could review and suspend any sentences other than those imposed by Judicial Commissioners. The High Commissioner always reviewed death sentences and at first the Protectorate had no power of execution. Criminal cases within the jurisdiction of Deputy Commissioners could be tried summarily, at the Court's discretion, when the charges were for offences with a maximum punishment of less than twelve months or for offences against the Order in Council of King and Queen's Regulations. Charges for offences not within these categories but otherwise within the jurisdiction of Deputy Commissioners could also be tried summarily, with the consent of the accused, when the Court was of the opinion that in the event of a conviction a sentence of imprisonment not exceeding six months or a fine not exceeding £50 would be adequate. In all other cases a trial was in order after a preliminary examination. The Court sat without a jury in both civil and criminal cases. In all civil cases where the amount of property in dispute exceeded £300 in value and in all criminal cases tried upon an order of commitment for trial, the Court was bound to sit with at least two and not more than four assessors, unless impartial persons of good repute were unavailable. The Court could also sit with assessors in cases other than those mentioned. Assessors had no vote in decisions, which were solely the responsibility of the Court, but they could dissent from decisions and have their dissent recorded. Native assessors (usually Headmen) were only employed in cases concerning indigenous Solomon Islanders.
Appeal lay with the High Commissioner's Court in both civil and criminal cases in accordance with the provisions of the Pacific Order in Council of 1893. Criminal cases tried before Deputy Commissioners in which a sentence of imprisonment was for more than six months, or a fine was more than £100, had to be submitted to the Supreme Court of Fiji for review. The High Commissioner could also direct that any criminal case in which a Deputy Commissioner had imposed a sentence of imprisonment not exceeding six months or a fine not exceeding £100 be submitted for review. All criminal cases in the last-mentioned category, with the exception of cases where the sentence did not exceed imprisonment for two months or a fine of £5, had to be submitted to a Judicial Commissioner for examination and he reported to the High Commissioner any cases which in his opinion called for review. A Judicial Commissioner could also examine any cases excepted from automatic examination when he considered it desirable.
Before the Second World War, the Protectorate made some major interventions into customary law. In 1898, the administration developed a code of laws for Nggela Island, related to the Anglican mission-inspired Vaukolu (q.v.) and based on an 1893 code devised for the Gilbert and Ellice Protectorate. The Nggela code presaged the next intervention, the 1920 Native Tax Regulation, by appointing district high chiefs and village chiefs. Murder cases could be tried by three high chiefs at Tulagi, with the final sentence the prerogative of the Resident Commissioner. The sentence for murder was death, and use of abusive language, spreading false reports and sexual relations with a betrothed unmarried women carried six-month sentences, with provision for a compensation payment. Assault with a deadly weapon carried a sentence of from six to twenty-four months, and adultery from six to twelve months, with provision for compensation by men; women adulterers worked out their sentence in village labour. Rape was punished with one year in prison with hard labour, and could also be punished with up to ten lashes; women were not flogged. As with his war against headhunting (q.v.) in the Western Solomons, Resident Commissioner Woodford had exceeded his authority and was questioned from Suva about the final form of these special laws. (Boutilier 1984b, 48-50)
The 1920 regulations were a capitation tax, which varied from a few shillings to £1, payable by all adult males between sixteen and sixty years of age, with some exemptions. People saw little return for their tax payment, which forced many into wage labour on plantations. The Native Administration Regulation of 1922 established a system of District Headmen, Village Headmen and Village Constables. This was the beginnings of indirect rule, creating a Protectorate arm at a village level. These officials were instructed to supervise sanitation, prevent and report crimes, help arrest offenders, and organise the collection of taxes. The headmen were not necessarily traditional leaders, since they were chosen by District Officers because they could speak Pijin English or had some level of understanding of what the Protectorate was about, perhaps gained while working as indentured labourer. The Native Adultery Punishment Regulation of 1924 was the closest the government came to intervening in customary affairs. British law was less severe on adulterers than customary laws tended to be, though the latter varied greatly from island to island. For example, on Malaita adultery often led to killings. The new 1924 Regulation provided fines and sentences of six to twelve months imprisonment, which was very slow to be accepted by Solomon Islanders, particularly Malaitans. Missionaries, although most opposed a death penalty for adultery, thought the Regulation's penalties were too light. (Boutilier 1984b, 52-53)
In the 1930s, major modifications were being considered that would allow indigenous participation in the justice system. A 1937 government report examined the possible creation of a 'Native Administration' similar to those functioning in African colonies and the Gilberts and Ellice Colony, where there were Native Courts and Village Councils. Native Courts were introduced in several districts in 1940, and by 1941 District Officers were demanding the establishment of more. To accommodate them the British Order in Council was amended with a 1942 regulation. The Second World War intervened and halted progress until 1945. An important planning conference at Teneru in 1944 decided that Native Courts and Native Councils should not be burdened with elaborate clerical work, and that a degree of delegation to native authority was sensible. (Campbell 2007)
Onwards from the 1960s, the British Solomon Islands Protectorate had three types of Courts: Native Courts, Magistrate's Courts and the High Court.
High Court for the Western Pacific
A new Western Pacific (Courts) Order in Council was gazetted on 15 August 1961 and came into operation on 9 April 1962. This Order restructured the High Commissioner's Court (as constituted by the original 1893 Pacific Order in Council which established the Protectorate) as the High Court of the Western Pacific. The High Court also served the Gilbert and Ellice Island Protectorate and the New Hebrides. This was a Superior Court of Record and possessed the entire jurisdiction vested in Her Majesty's High Court of Justice in England. The Order also provided for the appointment of the Chief Justice, Judges and other officers of the High Court, for the jurisdiction of the Court and for the appellate jurisdiction of the Fiji Court of Appeal in respect to appeals from the High Court. Initially, the Court consisted of a Chief Justice based in Honiara and two Pusine Judges, one stationed in Tarawa in the Gilbert and Ellice Islands Colony, and one in Port Vila in the Anglo-French Condominium of the New Hebrides. But by 1974 the pattern was that the Chief Justice was ordinarily resident in the BSIP, and the Pusine Judge in the Anglo French Condominium. (The Gilbert and Ellice Islands Colony gained self-rule in 1971, then was separated into two territories in 1975, which were granted internal self-government and then independence.)
The law administered by the High Court consisted of local Ordinances and certain Imperial Statutes and Orders in Council. The new Order in Council recognised the existing Ordinances and Statutes and exercised the principles of and conformity with the Statutes of general application in force in England on 1 January 1961, as well as the substance of English common law and the doctrines of equality. As a consequence, two important Ordinances were enacted. One, The Magistrates' Courts Ordinance 1961, enabled the establishment of Magistrates' Courts in the Protectorate with civil and criminal jurisdictions, replacing the original appointment of Deputy Commissioners. The other was The Criminal Procedure Code Ordinance 1961, which provided for the procedure in criminal cases brought before the Magistrates' Courts and before the High Court. (AR 1961-1962, 54) The jurisdiction of the Judicial Commissioner ceased, and the jurisdiction of the BSIP High Court was thereafter exercised by a judge. This suspended a number of provisions of the Pacific Order in Council of 1893.
The Registrar of the High Court was appointed as Sheriff, and the District Commissioners became Deputy Sheriffs. The original High Commissioner's Court was established in Honiara in 1944 in an old leaf house shared with the Post Office and the District Administration. It was then relocated to two different Quonset huts, the first down by the beach and the second at the foot of Lengakiki Ridge. The first Chief Justice, Mr Justice G. G. Briggs, arrived in Honiara in 1962 and was sworn in on 16 April. The foundation stone of the new Western Pacific High Court and Chambers building was laid on 17 August 1963, and Chief Justice Briggs officially opened it on 28 October 1964. The next Chief Justice was Jocelyn (later Sir Jocelyn) Bodilly (q.v.), former Principal Crown Counsel, Hong Kong, his appointment announced on 14 June 1965. He served as Chief Justice of the Western Pacific until he retired in 1975. The new Chief Justice, Renn Davis, was appointed in April 1976 to be Chief Justice only of the Solomon Islands. (AR 1961-1961, 54-55; SND 15 Apr. 1976)
Matters taken to the High Court had first to be passed through a Magistrate's Court to decide if the case warranted being sent to the High Court.
Magistrates' Courts
The judicial jurisdiction of Deputy Commissioners was terminated on 1 June 1962, except in relation to the Death and Fire Ordinance. From this day, the Magistrates' Courts Ordinance 1961 operated, with the Chief Secretary, the Financial Secretary and all senior Administrative Officers appointed as Magistrates. Francis Aqorau Talasasa (q.v.), the first Solomon Islander to be appointed a Deputy Commissioner, was also the first to be appointed as a Magistrate. Magistrates' Courts were established in all four districts. The High Commissioner appointed Magistrates with the approval of the Chief Justice. All District Commissioners and some District Officers were Magistrates. Magistrates' Courts had the power to judge more serious matters than did the Native Courts. The 1961-1962 Annual Report records that Magistrates' Courts had jurisdiction in civil cases, but limited to personal suits arising from tort or from contract where the value of the property debt or damage did not exceed £500. Matrimonial causes, probate matters, and certain rare torts were excluded from the civil jurisdiction of Magistrates. Under the terms of the Land and Titles Ordinance Part IX of 1959, Magistrates had no jurisdiction in any matters involving the title of land, whether customary title or land held under written laws. Provision was made for the appointment of Justices of the Peace to fulfil certain functions previously carried out by the Deputy Commissioners. Magistrates' Courts could send a person to prison for up to one year and impose a fine of up to £100, or both. (AR 1961-1962, 55)
Because Magistrates were not professionally qualified, the High Court was given wide powers to revise their decisions in criminal matters and there was also a right of appeal from a Magistrate's Court to the High Court in both civil and criminal matters. The right of appeal from the High Court was to the Fiji Court of Appeal. In certain circumstances, further appeal was possible to the Judicial Committee of the Privy Council. (AR 1961-1962, 55) The Criminal Procedure Code contained a full and comprehensive procedure to be followed in all criminal cases brought before the High Court from a Magistrates' Court. A Penal Code was enacted in 1963 to simplify the work of the courts and to make it easier for the public to understand the criminal law.
Under the Magistrates' Courts (Amendment) Ordinance 1969, a system of First Class and Second Class Magistrates' Courts was developed. A Magistrate of the First Class could deal with civil cases where the value of the property debt or damage claimed was not more than $1,000. Magistrates of the Second Class could deal with cases not exceeding $200. Magistrates could try summarily any criminal offence for which the maximum punishment did not exceed twelve months' imprisonment or a $200 fine, or both. (AR 1971, 77)
In the 1960s and up to the time of independence in 1978, there were three types of Magistrates' Court: that of the Principal Magistrate, where the Magistrate was also a lawyer, and First and Second Class Magistrates' Courts, both headed by an Administrative Magistrate. The Principal Magistrate's Court could deal with all criminal cases except murder, manslaughter and other offences involving death, rape and certain defilement cases, and all civil cases where the sum involved was under £2,000 ($4,000). The maximum sentence it could impose was five years imprisonment or a fine of £1,000 ($2,000), or both, and in cases of two or more offences up to ten years imprisonment or £2,000 ($4,000), or both. First Class Magistrates' Courts could deal with any criminal offence for which the maximum punishment did not exceed one year in prison or a fine of £200 ($400), or both. In addition, Magistrates' Courts were expressly given jurisdiction over a large range of more serious offences, and over civil cases where the sum involved was under £1,000 ($2,000). The maximum sentence First Class Magistrates Courts could impose was one year in prison or a £200 ($400) fine, or both, and in the case of two or more offences up to two years imprisonment or £2,000 ($4,000), or both. Second Class Magistrates' Courts could deal with the same range of criminal offences as the First Class Magistrates' Court could, but only those civil cases involving £200 ($400) or less. They could impose the same level of penalty, however. (Daly 1979, 2; NS Oct. 1961, 31 Mar. 1962, 15 May 1962, 15 May 1963, 31 Aug. 1963, 31 Oct. 1964, 15 June 1965)
Related entries
Published resources
Conference Proceedings
- Boutilier, James A. (ed.), The Law of England Has Come: The Application of British and Custom Law in the British Solomon Islands Protectorate, 1893-1942, Association for Social Anthropology in Oceania Annual Conference, Molokai, Hawaii, 28 February to 3 March 1984, 1984b. Details
Journals
- Solomons News Drum, 1974-1982. Details
- British Solomon Islands Protectorate (ed.), British Solomon Islands Protectorate News Sheet (NS), 1955-1975. Details
Journal Articles
- Campbell, Ian C., 'To Not Reinstate the Past: Wartime Optimism and Planning for the British Solomon Islands Protectorate', Journal of Pacific History, vol. 42, no. 1, 2007, pp. 55-72. Details
Manuscripts
- Daly, F., Structures of Courts or Law in the Solomon Islands, Memorandum to Hon. Minister for Law & Information, Auki, 1979, 10 pp. Details
Reports
- British Solomon Islands Protectorate, British Solomon Islands Protectorate Annual Reports (AR), 1896-1973. Details
