Outsourcing the Legal Framework: Consultants, catch-all clauses, and agenda pushing in Solomon Islands law

Melanie Phillips

Introduction

To paraphrase Jane Austen, it is a truth universally accepted that a country in the pains of ‘development’ must be in want of an advisor. This may be overstating it, but it should not come as an overstatement to those working in developing countries that independent advisors and consultants are two a penny.

Many consultants and short-term advisers do amazing work and contribute significantly to the countries they work in. They bring skills and experience that would otherwise be inaccessible or not affordable. But such assignments are not without risk and should be treated with caution, particularly those assignments seeking immediate gains. Short-term consultancies to carry out a discrete, stand-alone piece of work, such as drafting a constitution for a new association, can be highly successful. Likewise, regular short-term inputs over a longer period of time can be useful. All too often, however, there appears to be a lack of connection between the assignments’ outputs and the practical realities of the country in which they are working. This appears, in my view, to be caused by an adherence to modes of practice and implementation time frames that are unrealistic.

This essay discusses the effect of fly in-fly out consultants in relation to the laws and legal development of Solomon Islands. Increasingly, there are examples of laws coming into existence that have been inadequately consulted on, that conflict with other laws, or that are administratively burdensome and too expensive to implement. More often than not, these laws appear to be the effect of donor-funded development agendas that are rushed to meet time frames set by donors without realistic input and opportunity to comment from the recipient country.

Setting the agenda and imposing ideals

The potential harm of a fly-in fly-out consultant is, in my experience, caused by an inability (in a large part, no fault of their own) to work within the local context to achieve a relevant and lasting outcome to their work. They are engaged for a short, discrete assignment to tackle a specific problem. Exacerbating this are two things. First, that the consultant is often engaged by an organisation that is seeking to push a broader agenda – whether this be the promotion of gender equality, financial transparency, or government accountability. This agenda is often set by the organisation based on what they perceive to be weaknesses in the recipient country.

Second, the consultant is often one of a string of consultants engaged on consecutive short-term contracts, making it difficult to share local knowledge and experiences over time. Their assignment is often approached based on extensive professional experience from other countries and regions but without the broader institutional and cultural background of the recipient country that gives context to the work the consultant is engaged to carry out. While acknowledging that consultants often simply want the best and are trying to impart international good practice, the challenge then comes in localizing this and making sure international good practice is culturally and context sensitive.

However, the temporary nature of a consultant’s stay means that the consultant is, quite simply, never given an opportunity to learn from the process of implementing the laws that they help draft, and identify gaps or short-comings. They are whisked off to their next assignment and never given the somewhat more difficult task of implementing and living with the results of their actions.

For those who live permanently in a ‘recipient’ country, we must live with the consequences. The most efficient way to do deal with difficulties appears to be simply ignoring it – Solomon Islands is full of laws that have been enacted but which have progressed precisely nowhere, often for a good reason. Some of them were made without any understanding of the culture. Others are political hot potatoes. And others are simply too expensive to implement.

Cut and paste – the Family Protection Bill 2014

A recent example is the Family Protection Bill 2014[1]. This Bill attempts to deal with the very real and prevalent issue of family violence and, in particular, gender based violence. The problem is that it attempts to deal with this by creating additional complaint jurisdictions, duties, funds, orders, and councils, creating even more work and cost for the country’s currently overburdened police and court systems. Wealthier countries with more sophisticated systems may be able to afford such complexities, but in a country where the basic functions such as building trust in the police is a struggle, I have doubts that such complicated systems will work.

The Family Protection Bill 2014 is also an example of ‘cut-and paste’ law – it is copied in whole, with no variation except for country name, from Vanuatu[2]. Vanuatu is country that ranks above Solomon Islands in almost all development indicators[3]. It is also a country that, while it may have its own problems and issues, is not recovering from a crippling period of violence that severely impacted the functioning of many basic institutions in the country. Rebuilding institutions needs to be taken in small steps –adapting laws not written for this country is a potentially destructive step because it can lead to the diversion of resources and focus away from the strengthening of basic institutions and processes and into more complex focus-specific areas. In short, it is a country getting ahead of itself.

Drafting errors – the Public Financial Management Act 2013

Another example of such legislative problems appears in the Public Financial Management Act 2013. This Act is one of the key projects being carried out as part of the economic reform programmes in Solomon Islands. This Act was enacted for the purpose of providing a unified financial management system that applies to all use of public money and to all of Government, including at provincial level. The problem with this legislation is that it has forgotten to do some key things such as include provincial government or the money taxed and charged by provincial government within the definition of the Act. Despite best intentions, this Act remains largely unenforceable at sub-national level because it is unclear and inconsistent – exactly what laws should not be.

Given the amount of money spent in the lead up to this Act’s introduction, it is reasonable to ask the question, what went wrong? Some blame a lack of clear policy, others the fact that the Act went through several substantial re-writes (all by different legal drafters). However, the central problem appears to be the limited involvement or engagement from sub-national government in both the lead-up to and consultation on this Act. Despite significant criticism in Parliament from opposition Members of Parliament, this Act was pushed through, apparently to assuage the donors who largely funded and supported its policy development, drafting and inception[4].

Consultation, ‘catch all’ clauses and lazy drafting

In the defense of those seeking to enact laws in Solomon Islands, it is not always easy to get people to turn up to meetings, consultations, or workshops. There are many reasons for this – conflicting schedules, late notice, illness, complexity of subject matter, lack of interest, and so on. But in the case of provincial governments, it usually comes down to money – most provincial governments simply cannot afford the airfares, accommodation, allowances, and other expenses that come with travelling to the capital city, especially for something that is not immediately relevant to their day-to-day functioning.

Consultation is critically important but it is also very expensive and, for those on short-term contracts, it is often too logistically difficult and too much of a time burden to travel out to the provinces to meet directly with those affected. The cost of travel and the time it takes to visit areas outside of the capital city can be a real barrier to effective consultation and, as such, effective policy and legal development because this is an expense that many cannot afford.

As such, reliance increasingly falls on “catch all” clauses. These are sections of an Act that say something like ‘in the event of an inconsistency between this Act and any other law, to the extent of that inconsistency this Act prevails’. They are also called ‘overriding’ clauses because they effectively say that ‘this’ law overrides all other laws.

Overriding clauses are popular because they are easy to include – they cover a wide gamut of eventualities and means that ‘your’ Act will not be at risk of being pushed aside in favour of another Act. They are also important for agenda pushers because those pushing the agenda that led to the introduction of that law can safely and with confidence build their future agenda platform in the knowledge that the law will not get pushed aside.

These sections also work well in countries such as Solomon Islands where access to law is a problem, as discussed in an earlier essay by this author in this Journal. Wealthy countries almost always have a compendium of all their laws available online and a simple search will reveal all of the laws that might have an impact on a proposed new law. A section will then be included in the proposed new law making sure everybody knows how the new law affects older laws. Where such detail is not possible, these generic overriding clauses are included to bridge this gap. For obvious reasons, this is popular with short-term consultants who do not have time to familiarise themselves with local laws.

The result of this approach is that due to the fact that more laws appear to be supported or written by those pushing an agenda, these overriding clauses are increasing in frequency. This appears, in my view, to be because much of the legislation is written, developed, or backed by development partners and interest groups who have the time and money to commit to supporting their interests, with less Solomon Island-led initiatives on the legislative agenda. For example, in Solomon Islands, section 4 of the Public Financial Management Act 2013 says that it overrides any other conflicting law. The problem is that so does section 4 of the Environment Act 1998, section 12 of the Foreign Investment Act 2005, section 26(7) of the State Owned Enterprises Act 2007, section 24(3) of the National Disaster Council Act, and section 6 of the Preservation of Public Security Act. What this means in practice is that in the rush to avoid conflict, more is created. Each of these Acts contains words to the effect that they trump all other laws – for the purpose of avoiding conflict – but when all of these acts say the same or similar things, then we are left in a state of confusion about which one really applies.

There is an obvious problem in application – when everyone is arguing that their law trumps someone else’s law, who prevails? There is no clear answer. This issue has yet to be challenged in the courts however it was an issue with the recent flash flooding in Honiara where a dispute allegedly arose regarding the procurement of emergency supplies for disaster victims using public funds. The Public Financial Management Act 2013 requires all public money to be managed and procured in accordance with the Act. But the National Disaster Council Act allows the Chairman of the National Disaster Council to override any government administrative procedure. Where both technically trump the other, which applies?

Conclusion

Both the Family Protection Bill 2014 and the Public Financial Management Act 2013 are examples of an agenda getting ahead of itself. The rationale behind each is clear and defendable – after all, who doesn’t want to protect the vulnerable? Likewise, who does not think public money needs to be managed in an accountable, transparent manner? I would argue no one (except perhaps the corrupt and violent). In each case, however, the legislation was subject to the timeframes set by donors and consultants, not by the Government. Such actions require those in a recipient country to drop what they are doing to make these programmes work, while also having government work and priorities to focus on, which may not directly align with that of donors or consultants.

There is so much pressure to maximise the limited amount of time that consultants spend in a country that short-cuts are made in laws, such as cutting and pasting, or inserting catch-all clauses. This is perhaps where culture overlaps with agenda. Things move a little slower in the Pacific – we like to take our time and think things through. It also takes longer to get everyone moving in the same direction, largely because accessing information can be so difficult. Working for provincial government, it is not uncommon for me to read reports written by various development agencies that have completely omitted the involvement of provincial government, I suspect partly because provincial laws are not always readily available. Forcing things to speed up means losing people along the way and that can leave a person standing at the so-called winning line with nobody else to join them.

Taking the time to adequately consult and think through the implications of certain actions, to get buy-in from various government and non-governmental bodies, and being willing to adapt and change as things evolve and develop are fundamental to making good laws. The process of reform, whether legislative, economic, or otherwise, needs first and foremost the involvement of government. The resources of government should be engaged, including the expertise of the persons often already engaged there, with advisers supplementing where needed. Long-term development must be a government led initiative, not a donor-led initiative.

While Government must be held accountable for its actions, particularly with regards to commitments under international conventions, the practical realities of a country can be best understood by the people that live there. Some standards are simply not attainable and when there are numerous competing interests, a Government must prioritise. It is, after all, answerable to the people, not development partners or consultants. In this vein, international good practice, as practised by consultants, needs to expand to include a duty of care to the recipient country – a commitment by the organisation and development practitioner that they will act in the best interests of the country, and not their own organisation.

It is often said in development that there is no point reinventing the wheel – that the problems faced by, for example, Solomon Islands, are not unique or new. This may be true, but the circumstances that led to these problems are unique. We may not need to reinvent the wheel but we do need to make sure that it can handle Honiara’s pot holes, or the East Malaita dirt roads after a good rain.

 

[1]The Family Protection Bill is, as I write, at the Bills and Legislation Committee hearing phase, set for tabling in the Solomon Islands Parliament in mid-August 2014.

[2]The link to the Vanuatu law can be found here. Tonga also recently passed the same law in 2013.

[3] Examples can be seen here.

[4]Discussion around the Act can be seen here, here, and here.

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