Solomon Islands 1978 Constitution (reviewed 2018) - Page 7 of 17

Table of Contents

CHAPTER VII. THE LEGAL SYSTEM

Part I. The Application of Laws

75. Application of laws

Parliament shall make provision for the application of laws, including customary laws.
In making provision under this section, Parliament shall have particular regard to the customs, values and aspirations of the people of Solomon Islands.

76. Common law and customary law, etc

Until Parliament makes other provision under the preceding section, the provisions of Schedule 3 to this Constitution shall have effect for the purpose of determining the operation in Solomon Islands—

of certain Acts of the Parliament of the United Kingdom mentioned therein;
of the principles and rules of the common law and equity;
of customary law; and
of the legal doctrine of judicial precedent.

Part II. The Judiciary

a. The High Court

77. Establishment of High Court

There shall be a High Court for Solomon Islands which shall have unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law and such other jurisdiction and powers as may be conferred on it by this Constitution or by Parliament.
The judges of the High Court shall be the Chief Justice, the Deputy Chief Justice and such number of puisne judges, if any, as may be prescribed by Parliament:Provided that the office of a judge shall not be abolished while any person is holding that office unless he consents to its abolition.

78. Appointment of judges of High Court

The Chief Justice shall be appointed by the Governor-General, acting in accordance with the advice of the Judicial and Legal Service Commission.
The Deputy Chief Justice and the puisne judges shall be appointed by the Governor-General, acting in accordance with the advice of the Judicial and Legal Service Commission.
A person shall not be qualified for appointment as a judge of the High Court unless—
1. he holds, or has held, high judicial office in any country in the Commonwealth or in any country outside the Commonwealth that may be prescribed by Parliament; or
2. he is qualified to practise as a barrister or solicitor in such a country and he has been so qualified for not less than five years.
In computing, for the purposes of the preceding subsection, the period during which any person has been qualified to practice as a barrister or solicitor, any period during which he has held judicial office after becoming so qualified shall be included.

78A. Functions of the Deputy Chief Justice

Notwithstanding section 79, the Deputy Chief Justice shall perform the functions of the office of Chief Justice if-
1. the office of Chief Justice is vacant; or
2. for any reason (including illness or absence from Solomon Islands), the Chief Justice is unable to perform the functions of his office.
The Chief Justice may, by order in the Gazette, delegate some of the functions of his office to the Deputy Chief Justice.

79. Acting judges and Commissioners of High Court

If the office of Chief Justice or Deputy Chief Justice is vacant the Governor-General, acting in accordance with the advice of the Judicial and Legal Service Commission, may appoint a puisne judge or some other person qualified for appointment as a judge of the High Court to act as Chief Justice of Deputy Chief Justice.
If, for any reason (including illness or absence from Solomon Islands), the Chief Justice and the Deputy Chief Justice are unable to perform the functions of the office of Chief Justice, such functions (including any functions delegated under section 78A(2)) shall be performed –
1. by the next senior puisne judge in terms of appointment who is in office in Solomon Islands; or
2. if the next senior puisne judge is unable for any reason (including illness or absence from Solomon Islands) to perform such functions, by a puisne judge or another person appointed pursuant to subsection (1) to act as Chief Justice.
If the office of a puisne judge is vacant or if a person holding the office of puisne judge is acting as Chief Justice or Deputy Chief Justice or is for any reason unable to perform the functions of his office, the Governor-General, acting in accordance with the advice of the Judicial and Legal Service Commission, may appoint a person qualified for appointment as a judge of the High Court to act as a puisne judge.
Any person appointed under the provisions of this section to act as a judge of the High Court shall, unless he earlier resigns his acting office or is removed therefrom under the next following section, continue so to act until the end of the period for which he was appointed or, if he was not appointed for a specified period, until his appointment is revoked by the Governor-General acting in accordance with the advice of the Judicial and Legal Service Commission:Provided that a person whose appointment has expired or whose appointment has been revoked may continue to act as such for so long thereafter as may be necessary to enable him to deliver judgment or to do any other thing in relation to any proceedings that were commenced before him previously thereto.
Whenever he is satisfied that no judge of the High Court is available to attend to the business of the Court, the Governor-General, acting in accordance with the advice of the Judicial and Legal Service Commission, may appoint some person to perform—
1. all or any of the functions of judge, either generally or in respect of any particular case or class of cases;
2. such functions of a judge as it shall appear to that person required to be performed without delay,
subject to such limitations and conditions, if any, as may be specified in the instrument of appointment.
Any person appointed under the provisions of the preceding subsection shall be styled a Commissioner of the High Court; all things done by him in accordance with the terms of his appointment shall have the same validity and effect as if they had been done by a judge of the High Court; in respect thereof he shall have the same powers and enjoy the same immunities as if he had been a judge of the High Court; and, notwithstanding that the period of his appointment has expired or his appointment has been revoked, he may sit as a Commissioner of the High Court for the purpose of delivering judgment or doing any other thing in relation to any proceedings that were commenced before him whilst his appointment was subsisting.

80. Tenure of office of judges of High Court

Subject to the provisions of this section, a Judge of the High Court shall hold office until he attains the age of seventy years.
Notwithstanding the preceding subsection, a person who is over the age of seventy years may be appointed as a judge of the High Court for a term of years and shall cease to hold office at the expiration of that term, and shall not otherwise cease to hold office except in accordance with this section.
Notwithstanding subsection (1), a judge of the High Court may voluntarily retire upon attaining the age of sixty years.
Nothing done by a judge of the High Court shall be invalid by reason only that he has attained the age at which he is required by this section to vacate his office.
A judge of the High Court may be removed from office only for inability to discharge the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour and shall not be so removed except in accordance with the provisions of this section.
A judge of the High Court shall be removed from office by the Governor-General if the question of the removal of that judge from office has been referred to a tribunal appointed under the next following subsection and the tribunal has advised the Governor-General that he ought to be removed from office for inability as aforesaid or for misbehaviour.
If the Governor-General considers that the question of removing a judge of the High Court from office for inability as aforesaid or for misbehaviour ought to be investigated, then—
1. the Governor-General shall appoint a tribunal which shall consist of a chairman and not less than two other members, selected by the Governor-General from among persons who hold or have held high judicial office in some part of the Commonwealth; and
2. the tribunal shall enquire into the matter and report on the facts thereof to the Governor-General and advise the Governor-General whether that judge should be removed under this section.
If the question of removing a judge of the High Court from office has been referred to a tribunal under the preceding subsection, the Governor-General may suspend the judge from performing the functions of his office, and any such suspension may at any time be revoked by the Governor-General and shall in any case cease to have effect if the tribunal advises the Governor-General that that judge should not be removed from office.
Except as provided in subsection (5) of this section, the functions of the Governor-General under this section shall be exercised by him in his own deliberate judgement.

81. Judge may sit after appointment has terminated

A judge of the High Court whose appointment has terminated otherwise than by reason of his removal from office may sit as a judge of that Court for the purpose of delivering judgment or doing any other thing in relation to any proceedings that were commenced before him while his appointment was subsisting.

82. Seal of High Court

The High Court shall have a seal bearing on it the words “The High Court of Solomon Islands” and such device as Parliament shall approve by resolution.

83. Jurisdiction of High Court in constitutional questions

Subject to the provisions of Sections 31(3) and 98(1) of, and paragraph 10 of Schedule 2 to, this Constitution, if any person alleges that any provision of this Constitution (other than Chapter II) has been contravened and that his interests are being or are likely to be affected by such contravention, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for a declaration and for relief under this section.
The High Court shall have jurisdiction, in any application made by any person in pursuance of the preceding subsection or in any other proceeding lawfully brought before the Court, to determine whether any provision of this Constitution (other than Chapter II) has been contravened and to make a declaration accordingly:Provided that the High Court shall not make a declaration in pursuance of the jurisdiction conferred by this subsection unless it is satisfied that the interest of the person by whom the application under the preceding subsection is made or, in the case of other proceedings before the Court, a party to those proceedings, are being or are likely to be affected.
Where the High Court makes a declaration in pursuance of the preceding subsection that any provision of the Constitution has been contravened and the person by whom the application under subsection (1) of this section was made or, in the case of other proceedings before the Court, the party in those proceedings in respect of whom the declaration is made, seeks relief, the High Court may grant to that person such remedy, being a remedy available against any person in any proceedings in the High Court under any law for the time being in force in Solomon Islands, as the Court considers appropriate.
Nothing in this section shall confer jurisdiction on the High Court to hear or determine any such question as is referred to in Section 52 of this Constitution otherwise than upon an application made in accordance with the provisions of that section.

84. High Court and subordinate courts

The High Court shall have jurisdiction to supervise any civil or criminal proceedings before any subordinate court and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court.
Where any question as to the interpretation of any provision of this Constitution other than Chapter II arises in any subordinate court and the court is of the opinion that the question involves a substantial question of law, the court shall refer the question to the High Court.
Where any question is referred to the High Court in pursuance of the preceding subsection, the High Court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with that decision or, if that decision is the subject of an appeal to the Court of Appeal, in accordance with the decision of the Court of Appeal.

b. The Court of Appeal

85. Establishment of Court of Appeal

There shall be a Court of Appeal for Solomon Islands which shall have such jurisdiction and powers to hear and determine appeals in civil and criminal matters as may be conferred on it by this Constitution or by Parliament.
The judges of the Court of Appeal shall be—
1. a President and such number of other Justices of Appeal, if any, as may be prescribed by Parliament; and
2. the Chief Justice, Deputy Chief Justice and the puisne judges of the High Court, who shall be judges of the Court ex officio.

86. Appointment of judges of Court of Appeal

The President of the Court of Appeal shall be appointed by the Governor-General, acting in accordance with the advice of the Judicial and Legal Service Commission.
The other Justices of Appeal shall be appointed by the Governor-General acting in accordance with the advice of the Judicial and Legal Service Commission.
A person shall not be qualified to be appointed under subsection (1) or (2) of this section unless he is qualified for appointment as a judge of the High Court.
A judge of the Court of Appeal shall not sit as a judge of the Court on the hearing of an appeal—
1. from any decision given by himself or any decision given by any court of which he was sitting as a member; or
2. against a conviction or sentence if he was the judge by or before whom the appellant was convicted.
If the office of President of the Court of Appeal is vacant or if the person holding that office is for any reason unable to perform the functions of his office, then, until a person has been appointed to and has assumed the functions of that office or until the holder thereof has resumed those functions, as the case may be, the Governor-General, acting in accordance with the advice of the Judicial and Legal Service Commission, may appoint one of the other judges of the Court of Appeal or some other person qualified for appointment to that office to act as President of the Court of Appeal:Provided that a person appointed under this subsection who is not a judge of the Court of Appeal may, notwithstanding the assumption or resumption of the functions of the office of President of the Court of Appeal by the holder of that office, continue to act as a judge of the Court of Appeal for so long thereafter as may be necessary to enable him to deliver judgment or do any other thing in relation to any proceedings that were commenced before him previously thereto.
Nothing in this section or the preceding section shall preclude the offices of Chief Justice and President of the Court of Appeal from being held by the same person.

87. Tenure of office of judges of Court of Appeal

Subject to the provisions of this section, a judge of the Court of Appeal shall hold office until he attains the age of seventy years.
Notwithstanding the preceding subsection, a person who is over the age of seventy years may be appointed as a judge of the Court of Appeal for a term of years and shall cease to hold office at the expiration of that term, and shall not otherwise cease to hold office except in accordance with this section.
Notwithstanding subsection (1), a judge of the Court of Appeal may voluntarily retire upon attaining the age of sixty years.
Nothing done by a judge of the Court of Appeal shall be invalid by reason only that he has attained the age at which he is required by this section to vacate his office.
A judge of the Court of Appeal may be removed from office only for inability to discharge the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour, and shall not be so removed except in accordance with the provisions of this section.
A judge of the Court of Appeal shall be removed from office by the Governor-General if the question of the removal of that judge from office has been referred to a tribunal appointed under the next following subsection and the tribunal has advised the Governor-General that he ought to be removed from office for inability as aforesaid or for misbehaviour.
If the Governor-General considers that the question of removing a judge of the Court of Appeal from office for inability as aforesaid or for misbehaviour ought to be investigated, then—
1. the Governor-General shall appoint a tribunal which shall consist of a chairman and not less than two other members, selected by the Governor-General from among persons who hold or have held high judicial office in some part of the Commonwealth; and
2. the tribunal shall enquire into the matter and report on the facts thereof to the Governor-General and advise the Governor-General whether that judge should be removed under this section.
If the question of removing a judge of the Court of Appeal from office has been referred to a tribunal under the preceding subsection, the Governor-General may suspend the judge from performing the functions of his office, and any such suspension may at any time be revoked by the Governor-General and shall in any case cease to have effect if the tribunal advises the Governor-General that that judge should not be removed from office.
Except as provided in subsection (5) of this section, the function of the Governor-General under this section shall be exercised by him to his own deliberate judgment.

88. Judge may sit after appointment has terminated

A judge of the Court of Appeal whose appointment has terminated otherwise than by reason of his removal from office may sit as a judge of that Court for the purpose of delivering judgment or doing any other thing in relation to any proceedings that were commenced before him while his appointment was subsisting.

89. Seal of Court of Appeal

The Court of Appeal shall have a seal bearing on it the words “The Court of Appeal of Solomon Islands” and such device as Parliament shall approve by resolution.

c. Rules of Court

90. Rules of court

There shall be a Rules Committee, consisting of the Chief Justice, the President of the Court of Appeal and the Attorney-General (who shall constitute a quorum) and such other persons as the Governor-General, acting after consultation with the Chief Justice, may appoint, which may make rules of court regulating the practice and procedure of the High Court and the Court of Appeal, prescribing the fees to be paid in respect of any proceeding and generally for making provision for the proper and effectual exercise of the jurisdiction of the High Court and the Court of Appeal, including the procedure for the making and hearing of appeals to the High Court from subordinate courts and for the making and hearing of appeals to the Court of Appeal from the High Court:

Provided that rules regulating the admission of legal practitioners to practise as barristers and solicitors or in either of these capacities, or prescribing or affecting the amount of any fees or the recovery thereof, shall not come into operation unless approved, either before or after being made, by Parliament.

Part III. The Director of Public Prosecutions and the Public Solicitor

91. Director of Public Prosecutions

There shall be a Director of Public Prosecutions whose office shall be a public office.
The Director of Public Prosecutions shall be appointed by the Governor-General, acting in accordance with the advice of the Judicial and Legal Service Commission.
A person shall not be qualified to hold or act in the office of Director of Public Prosecutions unless he is entitled to practise in Solomon Islands as an advocate or as a barrister and solicitor.
The Director of Public Prosecutions shall have power in any case in which he considers it desirable to do so—
1. to institute and undertake criminal proceedings against any person before any court (other than a court-martial) in respect of any offence alleged to have been committed by that person;
2. to take over and continue any such criminal proceedings that have been instituted or undertaken by any other person or authority; and
3. to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority.
Provided however, where any person may be liable for criminal prosecution in respect of any acts done in connection with the armed conflict on Guadalcanal from the 1st day of January 1998 to the 15th day of October 2000; or the 7th day of February 2001, as the case may be, such person shall not be prosecuted for such offence but shall be granted amnesty or immunity from prosecution in the manner and to the extent provided for by the Amnesty Act 2000 or by any other Act of Parliament providing for the grant of such amnesty in connection with the Marau conflict.
The powers of the Director of Public Prosecutions under the preceding subsection may be exercised by him in person or through other persons acting in accordance with his general or specific instructions.
The powers conferred on the Director of Public Prosecutions by paragraphs (b) and (c) of subsection (4) of this section shall be vested in him to the exclusion of any other person or authority:Provided that where any other person or authority has instituted criminal proceedings, nothing in this subsection shall prevent the withdrawal of those proceedings by or at the instance of that person or authority and with the leave of the court.
In the exercise of the powers conferred on him by this section the Director of Public Prosecutions shall not be subject to the direction or control of any other person or authority:Provided that, where any case in any way concerns the defence, security or international relations of Solomon Islands, the Director of Public Prosecutions shall bring the matter to the attention of the Minister responsible for justice and shall, in the exercise of his powers in relation to that case, act in accordance with any directions that Minister may give to him.
For the purposes of this section, any appeal from any judgment in any criminal proceedings before any court, or any case stated or question of law reserved for the purpose of any such proceedings to any other court, shall be deemed to be part of those proceedings:Provided that the power conferred on the Director of Public Prosecutions by paragraph (c) of subsection (4) of this section shall not be exercised in relation to any appeal by a person convicted in any criminal proceedings or to any case stated or question of law reserved at the instance of such a person.
During any period when the office of Director of Public Prosecution is vacant or the holder of that office is for any reason unable to perform the functions of his office, those functions shall be performed by the Attorney-General.

92. Public Solicitor

There shall be a Public Solicitor, whose office shall be a public office.
The Public Solicitor shall be appointed by the Governor-General, acting in accordance with the advice of the Judicial and Legal Service Commission.
A person shall not be qualified to hold or act in the office of Public Solicitor unless he is entitled to practise in Solomon Islands as an advocate or as a barrister and solicitor.
The functions of the Public Solicitor are to provide legal aid, advice and assistance to persons in need in such circumstances and subject to such conditions as may be prescribed by Parliament, and in particular—
1. to provide legal aid, advice and assistance to any person in need who has been charged with a criminal offence; and
2. to provide legal aid, advice and assistance to any person when directed to do so by the High Court.
A person aggrieved by a refusal of the Public Solicitor to provide legal aid, advice and assistance to him may apply to the High Court for a direction under paragraph (b) of the preceding subsection.
Parliament may make provision for the Public Solicitor to make a reasonable charge for services provided by him to persons in need whom he considers are able to make a contribution towards the cost of those services.
Except as provided in paragraph (b) of subsection (4) of this section, in the exercise of the functions conferred on him by or under this section the Public Solicitor shall not be subject to the direction or control of any other person or authority.