SOLOMON ISLANDS COUNTRY REPORT by chenshu

VIEWS: 10 PAGES: 14

									2008
ATTORNEY GENERAL’S
CHAMBERS

Ministry of Justice & Legal
Affairs
Honiara| Solomon Islands




SOLOMON ISLANDS COUNTRY
        REPORT
TABLE OF CONTENTS

Abstract                                                  Page 3
Introduction                                              Page 4
Message from the Attorney-General                         Page 6
1.    Background                                          Page 7
      1.1 Appointment of Attorney General
      1.2 Structure of the Attorney General’s Chambers
      1.3 Management of the Attorney General’s Chambers

2.   Litigation                                           Page 9
     2.1 Major Cases
     2.2 Challenges
     2.3 Matters before the Court

3.   Legal Advice                                         Page 11
4.   Legislative Drafting                                 Page 11
     4.1 Acts of Parliament
     4.2 Bills In Parliament
     4.3 Subsidiary Legislation

5.   Conclusion                                           Page 15




                                            ~2~
ABSTRACT
“RAMSI kam fo helpem iumi blo Solomons”

The Regional Assistance Mission to Solomon Islands (RAMSI) is a partnership between the Government
and people of Solomon Islands and the contributing countries of the Pacific Region. It is a long-term
exercise aimed at helping create the conditions necessary for a return to stability, peace and a growing
economy.

RAMSI was deployed on 24 July 2003, with a mandate unanimously approved by the Solomon Islands
National Parliament, to help the Solomon Islands Government restore law and order, strengthen
government institutions, reduce corruption and re-invigorate the economy. To achieve these aims,
RAMSI is working closely with the Ministry of Justice and Legal Affairs. RAMSI is helping to rebuild the
Royal Solomon Islands Police (RSIP) and is assisting in strengthening the criminal justice system.

In the same way, RAMSI is helping to rebuild the Solomon Islands court system. RAMSI is providing
personnel, infrastructure and administrative support to key justice agencies and the courts (Magistrates’
Court and High Court), to ensure Solomon Islands’ justice system operates effectively, openly and fairly.

Due to RAMSI funding, an expatriate Public Solicitor and fourteen experienced expatriate lawyers are
working in the Public Solicitor’s Office alongside their Solomon Islands colleagues, providing free legal
advice and representing those people charged with offences (including but not limited to criminal
matters).

In 2006, a Solomon Islander assumed the role of Director of Public Prosecutions, following the departure
of an expatriate Director who had trained his successor to take over the position. Eight experienced
expatriate prosecutors are also working in the Office of the Director of Public Prosecutions and four
Police Prosecutions advisers are working in the Royal Solomon Islands Police Prosecutions Branch, to
ensure Crown cases are prosecuted fairly and fully, and to provide advice, support and training to their
Solomon Islands counterparts.

A RAMSI-funded Deputy Chief Magistrate and a Principal Magistrate are supporting the Chief Magistrate
in the fair and timely delivery of services at the Magistrates’ Court. RAMSI is also funding the provision
of two additional High Court Judges. Advisers are also supporting improved administration and case
management at the Magistrates’ Court and High Court. RAMSI is providing financial and logistical
support to facilitate the attendance of witnesses to trials.

RAMSI has provided experts to work as the Solicitor General, Deputy Solicitor General and as the Legal
Drafting Advisor, providing legal advice to the Government and assisting to review and draft Solomon
Islands’ legislation and law.




                                                  ~3~
INTRODUCTION
The Attorney General of the Solomon Islands holds a constitutional office established by section 42 of
the Solomon Islands Constitution. His statutory functions include that of Principal Legal Adviser to
Government.

Unlike other jurisdictions, the Attorney General of the Solomon Islands is a public officer and is not a
politician or Minister of the Crown.

As the principal legal adviser to government, the Attorney General, through the Attorney General’s
Chambers (AGC) is mandated to –
       Provide legal advice to government departments and ministries. The advices rendered by the
        AGC are usually in response to questions/queries on legal matters forwarded to Chambers. In
        this respect, the AGC’s point of contact in relevant ministries is through the respective
        Permanent Secretaries of the Ministries;
       Provide legal representation to government departments and Ministries. This ranges from
        eviction orders to constitutional matters;
       Provide legislative drafting services to the government in the formulation of new bills,
        amendments to existing legislation and the drafting of other statutory instruments.
The Crown Proceedings Act [Cap 8] forms the underlying basis of the Attorney General’s legal
representation role in that the Attorney General can be sued on behalf of any government department
or Ministry. In the same way, the Attorney General can also institute proceedings on behalf of any
government department or Ministry against any person, corporate or otherwise.

In relation to legislation administered by the AGC, the Chambers assumes the responsibility of advising
on all civil matters, practically covering all the laws of the Solomon Islands with the exception of criminal
law, which comes under the carriage of the Director of Public Prosecutions. Following from this, any
subsidiary legislation enacted under any of the laws, excluding criminal laws, immediately comes under
the administration of the AGC.

As the Principal Legal Advisor to the Government, the Attorney General is tasked with the responsibility
of overseeing and advising on actions taken by or intended to be taken by statutory boards and
committees so as to ensure lawfulness. In this respect, the Attorney General, or his nominee is
represented on several boards and committees.

At present, the Committees and Boards to which the Attorney or his nominee is a member are:
(a)     Investment Corporation of Solomon Islands (ICSI) Board
(b)     Judicial and Legal Services Commission (JLSC)
(c)     Central Tender Board
(d)     Anti-Money Laundering Committee
(e)     Citizenship Commission
(f)     National Education Board
(g)     Telecommunications Task Force
(h)     Central Property Unit
(i)     Solomon Islands Bar Association
(j)     National Committee on Children
                                                    ~4~
MESSAGE   FROM   THE   ATTORNEY
GENERAL

          ~5~
This Country Report was prepared with the intention of highlighting the challenges that were
encountered by the Attorney General’s Chambers (AGC) of the Solomon Islands in the years 2006 –
2008. It endeavors to provide a balanced and accurate record of the legal and political challenges that
the AGC had encountered and the efforts that have been made to counter them. Throughout this
period, the AGC had lost staff and repute. At present, the AGC is slowly recovering its image and is
quickly regaining one that is consistent with the work that it undertakes.



Gabriel K. Suri




                                                   ~6~
1.      BACKGROUND
1.1     Appointment of Attorney General

The Attorney General of the Solomon Islands Mr. Gabriel K. Suri was sworn in on 19 November 2008
after having acted in that position for a period of 10 months. The Attorney General is assisted by the
Deputy Solicitor General, Mr. Steven Woods and the Chief Crown Counsel Mrs. Linda Folaumoe’tui. The
Legal Drafting Department is currently headed by Mr. Rupeni Nawaqakuta, the Legal Drafting Advisor.

There are presently five Senior Crown Counsel in the AGC, all of whom are litigation solicitors.

1.2     Structure of the Attorney General’s Chambers

Below is the current structure of the Attorney General’s Chambers –




                                                   ~7~
1.3     Management of the Attorney General’s Chambers

The AGC is managed by the Attorney General with the assistance of the Deputy Solicitor General.

The Deputy Solicitor General is responsible for all litigation matters before the High Court with the
assistance of five Senior Crown Counsel.

Between September 2007 and April 2008, the Drafting Section of AGC had the service of only one
lawyer, that being the Assistant Legal Draftsman. In April 2008, a new and experienced Legal Draftsman
was recruited by the Public Service on contract. That contract has lapsed. There is at present only one
lawyer in the drafting department who oversees all drafting matters forwarded to the AGC by respective
government offices.

At present, the AGC is without an Office Manager. There are 10 professional staff and 5 support staff. All
administration matters are under the management of the Librarian who also acts as the office
administrator. All related financial work is also undertaken by him with the support of the Attorney
General’s Executive Personal Secretary.

All other major administrative matters are dealt with by the Ministry.

The AGC has, since January 2008, adopted a case management system which basically records cases
referred to the AGC. At present, a counsel is specifically tasked with keeping a record of cases under the
carriage of individual counsels within Chambers. This allows the Chambers to have an accurate account
of the number of cases that are under the carriage of respective officers.

The management system is such that any new case which comes into the AGC is allocated to a solicitor.
A specialization system has been developed where all forestry and fisheries matters are allocated to two
particular legal counsels, land matters are allocated to one legal counsel and any legal advice is
forwarded to any legal counsel to research and formulate a legal opinion.

Staff meetings are usually conducted on Mondays. Issues discussed in the staff meetings are generally
limited to staff management issues and to discussing all cases listed before the court during the coming
week. Any discussion pertaining to the substantive work of the AGC is usually done between the
Attorney General or the Deputy Solicitor General and individual legal counsels.




2.      LITIGATION

                                                  ~8~
In the past twelve (12) months, the Attorney General’s Litigation Department has covered the full
spectrum of cases – from constitutional matters to eviction orders. The majority of these cases involved
administrative law and concern the application for judicial review or damages for unlawful conduct or
both. Many such cases arise out of two major primary industries in the Solomon Islands, being timber
and mining.

2.1     Major Cases

One major case during the year was John Makasi v. Commander of PPF & Attorney General Civil Appeal
Case No. 1 of 2008 (On Appeal from High Court Civil Case No. 59 of 2005).

Makasi sued the Commander of the Participating Police Force (PPF) and the government of Solomon
Islands (through the Attorney General) alleging gross breaches of human rights and numerous breaches
of Constitutional rights to freedom. The trial judge rejected all of Makasi’s claims, having rejected the
substance of his evidence as to the circumstances of his detention by the PPF and Royal Solomon Islands
Police (RSIP).

At trial, evidence had been given on behalf of the RSIP that the Commander of the PPF is not responsible
to the Commission of Police (of the RSIP) in any matter concerning the conduct of PPF operations.

On appeal, the focus was on whether such an arrangement was unconstitutional. This argument
centered on whether, by virtue of the Solomon Islands Constitution, there could only be one police force
in the Solomon Islands. The Court of Appeal held that whilst it was clear that section 43 of the
Constitution provides that the RSIPF shall be under the sole command of the Commissioner of Police,
there was no prohibition, as s19(4) of the Constitution recognized that, when needed, another police
force may be present in Solomon Islands.

Makasi argued that in the alternative that where another police force is present in Solomon Islands, it
must be under the command, control, direction and superintendence of the Commissioner of Police.

It was submitted on behalf of Makasi that section 19 of the Facilitation of International Assistance Act, in
providing that while “respecting the laws of Solomon Islands, the visiting contingent shall have sole
responsibility for the internal command, control, discipline and administration of the personnel of the
visiting contingent”, was unconstitutional. The Court of Appeal rejected this argument, holding that:

        “Section 19 of the Facilitation Act only deals with the PPF and it does not have the
        consequence of in any way restricting the command of the Commissioner over the Royal
        Solomon Islands Police Force which is mandated by s43 of the Constitution. Section 43
        only deals with the relationship between the Commissioner and the Royal Solomon
        Islands Police Force and it has no relevance to an arrangement made by the
        Government of the Solomon Islands with some other police force serving in the
        Solomon Islands. Further, section 43 does not require all police functions, including
        those vested in the PPF, to be under the control of the Commissioner. Finally, s.19 of the
        Facilitation Act does not in any way subject the Commissioner to any direction or
        control.”


                                                   ~9~
The effect of the Court of Appeal decision was to uphold the legal framework supporting the existence
of the Regional Assistance Mission to Solomon Islands.

2.2           Challenges

The major challenges that the Litigation Department faces is in relation to obtaining instructions from
Government ministries or departments against whom suits are instituted. To this extent, the Litigation
team has developed pro-active systems (including having the Permanent Secretary of each Ministry as
its contact point), educated clients and adopted a robust and pragmatic approach to the conduct of
litigation. This has led to increased responses and a proactive approach to queries raised by the
Chambers to Government Ministries and departments.

2.3           Matters before the Court

The year 2007 saw a total number of 64 matters instituted against the Attorney General. To date, all
these matters are still ‘active’ cases.

In 2008, 44 matters have so far been instituted against the Attorney General.

Prior to 2008, approximately 150 cases were current against the Attorney General. Many cases
routinely resulted in default judgment being entered against the Attorney General, producing massive
liabilities for the Government. Although the prospect of succumbing to default judgment is no more,
the AGC was, at the beginning of 2008 encumbered by a legacy of under-prepared cases. The year 2008
marks a significant turning point as efficient systems and dedicated staff begin the task of transforming
the Chambers into a viable and fully operational pillar of Government.




3.            LEGAL & PROCEDURAL ADVICE
The Attorney General provides legal and procedural advice to –

      (i)     the National Government, Provincial Government and its Agencies;
      (ii)    the Governor General, Parliament, Government Boards, Government Taskforces;
      (iii)   Boards or Commissions;
      (iv)    Cabinet; and
      (v)     Financial Intelligence Commissions and Financial Intelligence Unit on enforcing the Anti-Money
              Laundering and Proceeds of Crime Act.


                                                      ~ 10 ~
The primary areas of advice sought from the Attorney General’s Chambers have been in relation to land,
forestry and mining issues. Aside from this, assistance is also sought from the AGC on matters relating to
discipline within the public service.



4.      LEGISLATIVE DRAFTING
4.1     ACTS OF PARLIAMENT

4.1.1   Acts Passed in 2007

        1. Governors General (Pensions & Benefits) Act (Act No.2 of 2007)
        The Act provides for the pensions and other benefits for Governors General, including their
        spouses and children. It covers those who held the office of the Governor General on or after 7
        July 1978. The Act sets out the rates for pensions, the spouse entitlement when the Governor
        General dies, etc. Other entitlements under the Act, includes ex-gratia payment, official
        residence, vehicle, medical treatment.

        2. Income Tax (Amendment) Act 2007 (Act No. 3 of 2007)
        The amendment Act addresses certain unforeseen administrative difficulties in an amendment
        that enacted in 2005 and came into force on 1 January 2006. It relates to the operation of
        section 36B relating to deduction of tax from interest. The 2007 amendment gives indemnity to
        those who may have breached that provision when it came into force.

        3. Statistics (Amendment) Act 2007 (Act No. 4 of 2007)
        The amendment increased the fines under the principal Act.

        4. Magistrates Court (Amendment) Act 2007 (Act No.6 of 2007)
        The amendment created a single court of summary jurisdiction of the Magistrates’ Courts’ of
        Solomon Islands as a subordinate court to the High Court, under the administrative
        responsibility of the Chief Justice. It also created the 3 different levels of magistrates, namely,
        the Principal magistrate, Magistrate First Class and Magistrate Second Class) and their process of
        appointments.
        .
        5. State Owned Enterprises Act (Act No. 7 of 2007)
        The purpose of the Act is to promote improved performance of Government trading activities,
        through setting out the principles governing the operations of state-owned enterprises,
        including requirements for their accountability and responsibilities to the Ministers and
        Government. It covers the principal objectives and roles of SOEs, the ownership and corporate
        objectives, accountability and related matters.

        6. Correctional Service Act 2007 (Act No. 8 of 2007)
        The Act repeals and replaces the Prisons Act. It establishes the Correctional Service of Solomon
        Islands to replace the Prisons Service of Solomon Islands. The purpose of the Act is to establish,
        maintain and operate the Correctional Service in Solomon Islands based on internationally
        accepted standards for the fair and humane treatment of offenders consistent with the cultural,
        traditional and religious values of Solomon Islands. The aim is to focus treatment of offenders
        on their reintegration into the community through activities and service aimed at stopping them
        from re-offending, including retaining family connections and visitations.

                                                  ~ 11 ~
        7. Prescription of Ministers (Amendment) Act 2007 (Act No.9 of 2007)
        It increases the number of Ministers from 20 to 23.

        8. Prescription of Parliamentary Privileges, Immunities and Powers Act 2007 (Act No. 10 of
           2007)
        The Act prescribes the privileges, immunities and powers of the UK House of Commons as
        applicable to the Parliament of Solomon Islands.

        The list does not include Appropriation Acts.

4.1.2   Acts Passed in 2008

        1.     Mines and Minerals (Amendment) Act 2008 (Act No. 2 of 2008)
        The amendment provided for the carrying out of independent and due diligent search and
        proper assessment of companies intending to or applying for reconnaissance permit and
        prospecting licence.

        2.       Secured Transactions Act 2008 (Act No. 4 of 2008)
        The Act repeals and replaces the Bill of Sales Act. It regulates the creation and registration of
        transactions relating to interests in movable property. The Act provides for the security interest,
        obligations and priorities. Security interests will be required to be filed in a Filing Office and the
        registration will determine the priority, subject to certain exceptions provided by operation of
        law. It also sets out some of the enforcement provisions for secured interests.

        3.      Truth and Reconciliation Commission Act 2008 (Act No. 5 of 2008)
        The Act establishes the Truth and Reconciliation Commission to undertake reconciliation
        processes as a result of the armed conflicts and violence between 1998 and 2003. It seeks to
        promote national unity and reconciliation by involving all stakeholder in the reconciliation
        process.

        4.      Correctional Services (Amendment) Act
        The amendment Act corrects some of the problems in the principal Act, in light of the provisions
        of the Constitution relating to the appointments of prison officers.

4.2     BILLS IN PARLIAMENT

        Bills that are published to be debated in the November/December 2008 sittings of Parliament
        are –

        (a) Civil Aviation Bill 2008: To repeal and replace the Civil Aviation Act adopting the New
            Zealand Civil Aviation legislation as the model. It will ensure that the civil aviation laws in
            Solomon Islands follow the best international practice and standards in civil aviation
            regulations.

        (b) Constitution (Amendment)(No.1) Bill 2008: This is consequential to the enactment of the
            Correctional Service Act 2007 to change references to “prisons” to “correctional”.

        (c) Companies Bill 2008: It will repeal and replace the Companies Act focusing on the formation
            and operation of companies. It introduces the one shareholder company, community
            company with community interest and codifies most of the common law directors duties.
                                                   ~ 12 ~
        (d) Companies (Insolvency and Receivership) Bill 2008: It will cover insolvency procedures
            receivership for companies.

4.3     SUBSIDIARY LEGISLATION

4.3.1   Regulations Made in 2007

        1.    Forest Resources and Timber Utilisation (Timber Licensing and Timber Felling) Regulations
        2.    Customs and Excise (Export Duty)(Amendment) Orders
        3.    Price Control Orders
        4.    Fisheries (Fees) (Amendment Regulations
        5.    Assignment of Ministerial Responsibilities
        6.    SI Water Authority Fees and Charges
        7.    Income Tax Exemption Orders
        8.    Income Tax (Professional Services)(Amendment) Order
        9.    Western Province Business Licence (Amendment)Regulations
        10.   Goods Tax Exemption Orders
        11.   Members of Parliament (Entitlements) Commission (Amendment) Regulations
        12.   Forest Resources and Timber Utilisation (Licensing and Tree felling) Regulations
        13.   Makira Ulawa Penalties for Offences Ordinance
        14.   Makira Ulawa Business Licence ordinance
        15.   Stamp Duties (Exemption) Orders
        16.   Members of Parliament (Entitlements) Commission (Amendment) Regulations
        17.   Provincial Assemblies and Members Salaries and Entitlements (Amendment) Awards
        18.   Customs and Excise (Value of Logs Exports) Order
        19.   Customary Land Records Regulations
        20.   Guadalcanal Province Business and hawkers Licensing (Amendment) Ordinance
        21.   Ports of Honiara and Noro Levy and Dues Rules
        22.   Fisheries (Fees) (Amendment)(No.2) Regulations
        23.   Constitutional Offices (Terms and Conditions of Service)(Rate) (Amendment) Regulations
        24.   Work Permit (Amendment) Rules
        25.   Members of Parliament (Entitlements) Commission (Amendment) Regulations
        26.   Gaming Regulations

4.3.2   Regulations Made in 2008

        1.       Price Control Order
        2.       Protection of Wrecks and War Relics Order 2007
        3.       Price Control Order
        4.       Customs and Excise (Import Duty)(Amendment) Orders
        5.       Goods Tax (Amendment) Order 2008
        6.       Central Province Business Licence (Amendment) Ordinance
        7.       Gaming Amendment Regulations
        8.       Local Courts (Sitting Allowances Rules
        9.       Correctional Services Regulations
        10.      Adoption Regulations
        11.      Lands & Titles (Customary 3Land Appeal Court Allowances) Regulations
        12.      Air Navigation (Fees)(Amendment Regulations
        13.      Honiara City (Exemption from Basic Tax) Ordinance
        14.      Constitutional Offices (Terms & Conditions of Service) (Justice of Appeal) Regulations

                                                   ~ 13 ~
        15.     Constitutional Offices (Terms & Conditions of Service) (President of Appeal) Regulations
        16.     River Waters (Manakwai River) Order
        17.     Temotu Province Market Ordinance
        18.     Temotu Province Dog Control Ordinance
        19.     Stamp Duties (Amendment) Orders
        20.     Pure Food (Fisheries Products)(Amendment) Regulations
        21.     Telecommunications (Amendment) Regulations
        22.     Agricultural Quarantine (Amendment) Order
        23.     SI Water Authority Fees and Charges
        24.     Extradition Regulations




4.      CONCLUSION
The Attorney General’s Chambers has faced challenges and obstacles in its operations through the years
2006 to 2007. As a result, most of the senior lawyers in Chambers resigned from public service with the
Attorney General’s Chambers. At one stage, there was only two Crown Counsel working in Chambers –
one doing Litigation and the other in the Drafting Department. The Office then progressed to recruit
other lawyers who now make up the professional staff at the Attorney General’s Chambers.

Since January 2008, with the recruitment of the current Attorney General, the Office has had a major
overhaul both administratively and in relation to the substantive mandate of the Chambers. This has
seen the development of management practice like the Case Management and Database system which
are currently both in progress at this stage. The Office has also developed an internal programme similar
to that of a CLE where the Deputy Solicitor General, Chief Crown Counsel and the Legal Drafting
Technical Adviser make presentations on various aspects of civil litigation and legal drafting. This forum
is also used as a means by which junior lawyers are able to present reports on international and regional
conferences/meetings that they attended. The Chambers has also developed a Duty Counsel roster
which involves one Crown Counsel attending all matters listed for mention on Mention Day. This allows
the counsel to develop an understanding of the cases that are under the carriage of other counsel.

The Attorney General’s Chambers of the Solomon Islands is pleased to report that at present, it has re-
established a rapport with the courts, law and justice agencies and private legal practitioners in the
Solomon Islands.




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