Plurality and punishment: Competition between state and customary authorities in Solomon Islands

Abstract

Abstract The co-existence of plural legal systems throws up complex practical dilemmas. In the criminal sphere, the interaction between customary and state laws raises issues that are, perhaps, most graphically illustrated in the areas of culpability and sentencing. However, questions also arise as to criminal jurisdiction and procedure. This article examines two such questions concerning the position where an act is punishable both by the state and by a customary authority. Firstly, it considers which system has priority; and, secondly, whether a person may be punished by authorities in both systems, or whether punishment under one system is a bar to punishment under the other. This article considers these questions in the context of Solomon Islands, with some reference to neighbouring small island countries, where similar questions arise. It begins by identifying the relevant constitutional and statutory provisions. The issues to which these provisions give rise when they interact with the customary legal system are then explored in depth, with reference to pertinent case law from Solomon Islands and other comparable jurisdictions.