Constitutionalism and customary laws in Solomon Islands

Constitutionalism in Solomon Islands is dominated by the written Constitution, which imports a Westminster system and the common law tradition. However, as in other jurisdictions where customary communities are strong, constitutionalism involves more than state institutions and mechanisms. At independence, Solomon Islands proclaimed an allegiance to custom in its Constitution. As a consequence of this, and its colonial history, it has a plural legal system wherein State laws co-exist with customary laws. In this context, the challenge for the idea of constitutionalism may come not only from international developments, but also from the domestic sphere. This Chapter argues that, rather than being challenged by limits imposed at an international or supranational level, governmental power is being challenged by local initiatives designed to promote the authority of traditional leaders and the customary laws which they promulgate. It commences with some background on Solomon Islands and an overview of its systems of law and government to give context to the discussion. It then proceeds to explore the balance of relations in different spheres of positive law, both generally and in respect of judicial review, freedom of contract, and the hierarchy of norms. Discussion then moves to the dynamics of the relationship between different aspects of positive law. The place of international law in Solomon Islands, the approach of legal actors, resolution of conflicts and transconstitutional dialogue, and evolution of approach to constitutionalism and conflicting norms are considered. The last part of the chapter comments on the failure of legal reasoning and jurisprudence to evolve