Justice of the peace

A justice of the peace (JP) is a judicial officer of a lower or puisne court, elected or appointed by means of a commission (letters patent) to keep the peace. In past centuries the term commissioner of the peace was often used with the same meaning. Depending on the jurisdiction, such justices dispense summary justice or merely deal with local administrative applications in common law jurisdictions. Justices of the peace are appointed or elected from the citizens of the jurisdiction in which they serve, and are (or were) usually not required to have any formal legal education in order to qualify for the office. Some jurisdictions have varying forms of training for JPs.

History

In 1195, Richard I (“the Lionheart”) of England and his Minister Hubert Walter commissioned certain knights to preserve the peace in unruly areas. They were responsible to the King for ensuring that the law was upheld and preserving the “King’s peace”. Therefore, they were known as “keepers of the peace”.

An act of 1327 had referred to “good and lawful men” to be appointed in every county in the land to “guard the peace”; such individuals were first referred to as conservators of the peace, or wardens of the peace. The title justice of the peace derives from 1361, in the reign of Edward III. The “peace” to be guarded is the sovereign’s, the maintenance of which is the duty of the Crown under the royal prerogative. Justices of the peace still use the power conferred or re-conferred on them since 1361 to bind over unruly persons “to be of good behaviour”. The bind over is not a punishment, but a preventive measure, intended to ensure that people thought likely to offend will not do so. The justices’ alternative title of “magistrate” dates from the 16th century, although the word had been in use centuries earlier to describe some legal officials of Roman times.

In the centuries from the Tudor period until the onset of the Industrial Revolution, the JPs constituted a major element of the English (later British) governmental system, which had been termed sometimes squirearchy (i.e., dominance of the land-owning gentry). For example, historian Tim Blanning notes[5] that while in Britain the royal prerogative was decisively curbed by the Bill of Rights 1689, in practice the central government in London had a greater ability to get its policies implemented in the rural outlying regions than could contemporary absolute monarchies such as France – a paradox due especially to JPs belonging to the same social class as the Members of Parliament and thus having a direct interest in getting laws actually enforced and implemented on the ground.

Being an unpaid office, undertaken voluntarily and sometimes more for the sake of renown or to confirm the justice’s standing within the community, the justice was typically a member of the gentry. The justices of the peace conducted arraignments in all criminal cases, and tried misdemeanours and infractions of local ordinances and bylaws. Towns and boroughs with enough burdensome judicial business that could not find volunteers for the unpaid role of justice of the peace had to petition the Crown for authority to hire a paid stipendiary magistrate.

The Municipal Corporations Act 1835 stripped the power to appoint normal JPs from those municipal corporations that had it. This was replaced by the present system, where the Lord Chancellor nominates candidates with local advice, for appointment by the Crown.

Until the introduction of elected county councils in the 19th century, JPs, in quarter sessions, also administered the county at a local level. They fixed wages, regulated food supplies, built and controlled roads and bridges, and undertook to provide and supervise locally those services mandated by the Crown and Parliament for the welfare of the county.

Women were not allowed to become JPs in the United Kingdom until 1919, the first woman being Ada Summers, the Mayor of Stalybridge, who was a JP (Ex officio) by virtue of her office. In October 1920 Ada was appointed a JP officially, alongside other pioneers like Miriam Lightowler OBE in Halifax[6]Emily Murphy of Edmonton, Canada, preceded her by some three and a half years.Now in the UK, 50% of JPs are women.

In special circumstances, a justice of the peace can be the highest governmental representative, so in fact ‘gubernatorial’, in a colonial entity. This was the case in the Tati Concessions Land, a gold-mining concession (territory) in the Matabele kingdom, until its annexation by the British Bechuanaland protectorate.

Modern use


Australia

A justice of the peace in Australia is typically someone of good stature in the community who is authorised to witness and sign statutory declarations and affidavits and to certify copies of original documents. Criteria for appointment vary widely, depending on the state.


Queensland

In the state of Queensland, a “justice of the peace (qualified)” has the additional powers to issue search warrants and arrest warrants and, in conjunction with another justice of the peace (qualified) constitute a magistrates’ court for exercising powers to remand defendants in custody, grant bail, and adjourn court hearings.[9][10][11]

Some justices are appointed as justice of the peace (magistrates’ court), usually in remote aboriginal communities, to perform many of the functions that might otherwise fall to a stipendiary magistrate.

In Queensland, a lawyer may be appointed as a Justice of the Peace without further education or qualification and has the full powers of a JP (Magistrate’s Court). A commissioner for declarations (C.dec) has powers limited to witnessing documents, witnessing statutory declarations, witnessing affidavits, witnessing and administering oaths and affirmations.[9]

The first woman to become a JP in Queensland was Matilda (Maud) Hennessey of Mackay on 24 April 1918.[12][13]


Victoria

Justices of the peace and bail justices, who are also volunteers, are appointed to serve a semi-judicial function in all areas of the Victorian community. The main official roles in the Victorian community include witnessing statutory declarations, witnessing affidavits and hearing bail matters outside court hours (bail justices only).

The first woman to become a JP in Victoria was Mary Catherine Rogers who, in 1920, became the first woman councillor in Australia when she was elected in the City of Richmond.[14]

Justices of the peace (JPs) provide a service to the community as independent witnesses of statutory declarations, powers of attorney and affidavits. JPs, who are also volunteers, are selected through an extensive interview, written exam and practical testing. They are recommended by the state attorney-general and appointed by the governor-in-council, and it is their job to authorise and witness statutory declarations and affidavits within the state of Victoria. There are currently around 4,800 JPs serving in all areas of the state.[15]


Bail justices

The role of a bail justice is to hear bail applications (under the Bail Act 1977) and to hear applications for interim accommodation orders for children (under the Children and Young Persons Act 1989) within Victoria. Bail justices, once appointed, may remain in their role until they turn 70 years of age (although they must be under 65 at the time of their appointment). They are often required to attend call outs and rule on bail applications or protection applications for children in danger on weekends and late at night when the courts are closed, but they can also witness Victorian statutory declarations and affidavits. Candidates must successfully complete a three-day training course run by the Department of Justice. Bail justices, who are also volunteers, also have some limited powers under federal legislation, including the power to conduct interstate extradition hearings and extending question time for federal police. Bail Justices may use the post-nominals BJ after their names.


New South Wales

The most common functions performed by a justice of the peace in New South Wales are to witness the signing of a statutory declaration, witness the signing of an affidavit and certify that a copy of an original document is a true copy.[17]

JPs are appointed by the Governor of New South Wales for five-year terms. They are volunteers, who come from all walks of life and all sections of the community. JPs are people who are trusted to be honest, careful and impartial when performing the functions of a JP. They must not charge a fee or accept a gift for providing JP services, tell people what to write in a statutory declaration or affidavit or write it for them or give them legal advice.[17]

Ways to find a JP in New South Wales include: 1. Search the JP Public Register. The register lists all JPs for each postcode area and provides a telephone contact number for JPs who serve the community directly. 2. Check a public listing of scheduled JP services to find when JPs are available at scheduled times and locations across the state.[18]


South Australia

In South Australia, there are two types of justices: justice of the peace and special justices.

A justice of the peace (JP) in South Australia is typically someone of good stature in the community who is authorised to witness and sign statutory declarations, affidavits, waiver rights, search warrants, drug warrants, divorce documents, and to certify copies of original documents and to witness the signing of power of attorney and guardianship documents, providing the JP is satisfied with the capability of the signatory.

A Special Justice (SJ) is a higher level of justice of the peace in South Australia; they sit on the bench of the magistrates’ court hearing cases in the petty sessions division.

The South Australian Attorney-General has set up a web site to locate justices of the peace.[19] The majority of metropolitan and many regional Councils (Local Government authorities) have a rotational justice of the peace in residence at nominated times.

South Australia’s first women justices were appointed in July 1915.


Western Australia

Justices of the peace in Western Australia are appointed by the Governor who authorises them to carry out a wide range of official administrative and judicial duties in the community.

As well as presiding in the Magistrates Court, justices of the peace are regularly called upon by the WA Police to sign search warrants and authorise the issuing of summonses. The administrative tasks include witnessing affidavits and documents such as wills and statutory declarations.

‘Visiting justices’ are a special group of justices of the peace, appointed to preside over cases within the prison system.[21]


Belgium

In Belgium, the justice of the peace (French: juge de paix, Dutch: vrederechter) is a law-trained judge who sits the lowest Court of record with original jurisdiction over small claims (less than €2500) matters of civil, commercial, and family law, including: tenancy and lease disputes, neighborhood disputes (party structures, trespassing, noise pollution), apartment buildings, small deceased estates, alimony, guardianships & adoption, and the commitment of mental patients and oversight of their care. Litigants may opt either for conciliation or trial. Lawyers may act as locum tenens JPs.


Canada

In Canada, justices of the peace play a role in the administration of justice at the provincial level. Justices are generally appointed by the lieutenant governors of Canada’s provinces, and by the commissioners of Canada’s territories, on the advice of their relevant premier or Attorney General. Canada made the first appointment in the then British Empire of a woman as a magistrate, namely Emily Murphy, who was sworn in as a police magistrate in the Women’s Court of the City of Edmonton (Alberta) on 19 June 1916.


British Columbia

In British Columbia, pursuant to the Provincial Court Act, all judges are justices of the peace, and hence all of them are peace officers.


Northwest Territories

In the Northwest Territories, justices may hear summary conviction matters, municipal by-laws, and certain criminal matters.[22] However, in more populated provinces justices usually preside over bail hearings and provincial offences courts. When not in a court session, a justice can perform other judicial functions, such as issuing search warrants.


Ontario

In Ontario, justices perform a wide variety of duties related to criminal and regulatory law, at the federal, provincial and municipal levels. Ontario JP wear a green sash versus red worn by judges.[23]


Quebec

In Quebec, there are two type of justices of the peace, administrative justice of the peace and presiding justice of the peace.

Administrative justice of the peace are court officers appointed by the Minister of Justice, and perform duties such as receiving criminal informations and issuing warrants. Presiding justice of the peace are appointed by commission under the Great Seal, and can try some criminal matters and issue warrants. They are appointed from advocates of at least ten years’ standing and serve full-time until the age of 70.


Yukon

In Yukon, justices of the peace are lay officers of the court. They sit in the Justice of the Peace Court, which is part of the Territorial Court of Yukon.


Hong Kong

In Hong Kong, the historical functions of justices of the peace have been replaced by full-time, legally qualified magistrates. Nowadays, justices of the peace are essentially titles of honour given by the Government to community leaders, and to certain officials while they are in their terms of offices. They have no judicial functions, and their main duties include visiting prisons, institutions for young offenders and drug addicts, psychiatric hospitals, remand homes, places of refuge, reception and detention centres,[24] administering statutory declarations, and serving as members of advisory panels.


India

In India, justices of the peace do exist,but they no longer occupy a prominent post. One of the famous justices in India was Kavasji Jamshedji Petigara.

Maharaja Prabirendra Mohan Tagore son of Maharaja Sir Prodyut Kumar Tagore KCSI of Calcutta was designated Justice of the Peace in 1932. He played a great part in saving more than 200 Muslim lives during the infamous riots in 1947 during the partition of India, by sheltering the Muslims in the Calcutta locality and most importantly in his palace itself.


Ireland

Justices of the peace existed in Ireland prior to 1922, sitting in a bench under the supervision of resident magistrates at petty sessions to try minor offences summarily, and with a county court judge (in his capacity of chairman of quarter sessions) and jury to try more serious offences at quarter sessions. In the Irish Free State the position was effectively abolished by the District Justices (Temporary Provisions) Act 1923[26] and permanently abolished by the Courts of Justice Act 1924. Their judicial powers were replaced by full-time, legally qualified district justices (now called district judges) and their quasi-judicial powers by lay Peace Commissioners. Peace commissioners may sign statutory declarations, and may issue summons and search warrants to the Garda Síochána (Irish police).[27] A Peace Commissioner cannot sign an Affidavit, in Ireland that function is performed by a Commissioner for Oaths.


Jamaica

A justice of the peace (JP), according to the Ministry of Justice, is a person of unquestionable integrity who seeks to promote and protect the rights of the individual and helps to provide justice to persons in a particular community. Additionally, the JP serves as a justice in petty court sessions, attends juvenile court sessions, issues summonses, considers applications for bail, explains and signs legal documents, sits on licensing panels, and gives counsel/advice. Any Jamaican citizen that can speak and write English is eligible to become a JP. Any club/organisation/citizen can recommend someone to become JP for a community. JPs are chosen under the Governor-General’s discretion.


Malaysia

In Malaysia, justices of the peace have largely been replaced in magistrates’ courts by legally qualified (first-class) stipendiary magistrates. However, state governments continue to appoint justices of the peace as honours. In 2004, some associations of justices of the peace pressed the federal government to allow justices of the peace to sit as second-class magistrates in order to reduce the backlog of cases in the courts.


New Zealand

A Justice of the Peace in New Zealand is someone of good stature in the community who is authorized to witness and sign statutory declarations and affidavits as well as certify documents. They may also perform citizenship ceremonies and act as a Visiting Justice in prisons the function of which is to record a prisoner’s grievance and decide on its validity.

They have certain powers to issue search warrants, and (in conjunction with another justice of the peace) may try minor criminal trials in the district court and exercise powers to remand defendants in custody, grant bail, and adjourn court hearings. They are nominated for office by local Members of Parliament and appointed by the Governor General. Appointment is for life and a JP must take the Oath of Allegiance and the Judicial Oath.


Pakistan

Sections 22, 22-A and 22-B of the Code of Criminal Procedure Code, 1898 provide for the appointment of justices of the peace by the provincial governments, their powers and duties respectively. However, seldom are justices of the peace appointed in Pakistan outside the judiciary. Session and additional session judges act as ex-officio justices of the peace as per Section 25 of the Code of Criminal Procedure, 1898. An Ex-officio Justice of the Peace may issue appropriate directions to the police authorities concerned on a complaint regarding- (i) non-registration of a criminal case; (ii) transfer of investigation from one police officer to another; and (iii) neglect, failure or excess committed by a police authority in relation to its functions and duties. Such functions being quasi-judicial in nature could not be termed as executive, administrative or ministerial.(PLD 2016 Supreme Court 581)

It is pertinent to note however, as many academics have pointed out, that there is great utility in the appointment of such justices especially in rural areas where enmity between rival groups can lead to the inability of registration of cognizable offences and biased judicial proceedings.


Singapore

A justice of the peace in Singapore derives his powers from statute law. He is appointed by the President of the Republic of Singapore, under the provisions of section 11(l) of the Subordinate Courts Act (Cap.321). The President may revoke the appointment of any justice of the peace. A newly appointed justice of the peace is required by section 17 of the Subordinate Courts Act, to take the oath of office and allegiance as set out in the schedule to the Subordinate Courts Act, before exercising the functions of his office.

In their role, JPs serve as visiting justices of Singapore prisons, mediators or referees in the subordinate courts. They may also solemnise marriages in the Registry of Marriages or perform the duties of the magistrate conferred on them by any written law.


Sri Lanka

In Sri Lanka, Justice of the Peace (JP) is an honorary post, with authorization to witness and sign statutory declarations and affidavits. Persons appointed as a Justice of the Peace may use the post-nominal JP. Current appointments are made under the Judicature Act No 02 of 1978, by the Minister of Justice at his/her discretion by publishing a list in the Gazette and appointee taking oaths before a high court, district court judge or magistrate with registrar of the supreme court recording it. Any citizen of Sri Lanka can apply to the Ministry of Justice giving his or her credentials to be appointed as a justice of the peace. However, the applicant should be one who has served the public and carries out social service and should be of good standing. The President of Sri Lanka and his/her officers are ex officio justices of the peace. A justice of the peace, who is an Attorney at law can be appointed as an unofficial magistrate.[29]

The post was introduced in the British colonial era, during which time appointments were made by the Governor until 1938, after which appointments were made by the Legal Secretary until 1947. After Ceylon gained its independence in 1948, appointments were made by the Governor General and the Minister of Justice. Justice of the Peace had the power to administer oaths and affirmations per the Courts Ordinance No. 1 on 1889 section 84 and they could formally appoint members of the public to act as special police officers in times of turmoil and riots. Since certain government officers were ex-officio justices of the peace, this allowed British colonial officers to appoint special police officers from the European planters in times of crisies such as the 1915 riots.[30] The Village Councils Law (No. 6 of 1964) made the Chairman of the Village Council an ex officio justices of the peace for that village area.


Tonga

In 2014, for the first time, Justices of the Peace were authorized in Tonga. JPs are appointed by the Crown, but the Lord Chief Justice regulates their duties and defines their powers. The first JPs were warranted with duties including granting bail; issuing search warrants and subpoenas; taking affidavits, declarations and oaths; and having the power to witness documents. Term of office is one year and officials can be reappointed. The initial 19 JPs appointed were: ‘Aisea Ta’ofi and Sione Hinakau of Niuatoputapu; ‘Inoke Tuaimei’api of Niuafo’ou; Siosiua Hausia from ʻEua; Sione Palu, Sione Fakahua, Me’ite Fukofuka and Kisione Taulani of Ha’apai; Salesi Kauvaka, Viliami Pasikala, Haniteli Fa’anunu, Meli Taufaeteau and Moleni Taufa from Vava’u; and Salote Fukofuka, ‘Amelia Helu, ‘Ofa Likiliki, Tevita Fakatou, Sioape Tu’iono and Semisi Tongia of Tongatapu.