JUSTICE OF THE PEACE: A CONCEPTUAL
STUDY, PROPOSALS AND PROSPECTS
By
MUHAMMAD SALEEM
Advocate High Court
ABSTRACT
The objective of the present research is to
carry out legal analyses of basic principles, Jurisdiction, logical phenomenon,
general rules that are implemented in exercising the jurisdiction of the
justice of the peace. The researcher will examine the functional form of
Justice of Peace, regarding the role of Justice of Peace in keeping the peace
in the society, ensuring the defense of the citizen with reference to
fundamental principles, and the body of administrative law within the frame of
the latest legislation. It is noticed that the role of Justice of Peace has
become particularly prominent part of our community for keeping the peace.
Therefore, it is required to evaluate the current topic so that former
background of the institution of Justice of Peace, its current status and
resources to strengthen its position can be established for beneficiaries. The
significance of this research work is to emphasize the dynamic profile of the
Institution of Justice of Peace in respect of keeping the peace in the society,
and ways to improve this Institution.
INTRODUCTION
Legal history is closely coupled with the
development of civilizations and is found in the wider backdrop of societal
history. According to certain jurists, and historians of legal process, it has
been observed as the recording of the promotion of laws, and the technical
rationalization of how these laws had gone ahead with the idea of improving
understanding the origins of a variety of legal concepts. Some believe it as an
offshoot of scientific history. In the earlier days of social development, the
fundamental guarantee of security for the individual and Property was physical
strength of the individual. There was competent evidence of the state of
society in which self defense and self redress of wrongs was normal[1].
Weak was suffered by the power of sound, and resource full personalities.
Whereas, man is a social animal, hence cannot avoid consequences of the events
confronting the region. There is no culture where society has no grievances
against the governmental machinery. When the ties of kinship appear to bind men
together in primitive societies, mutual responsibility for public order, and
the redress of wrongs took the place of personal responsibility.
The king's peace was at first unique and
extended only to some persons, times and places. Henry I placed the whole
territory under his firm peace and ordered it to be observed. In Henry II's
life, the order of the king was also elite that it was an easy matter to
enlarge it over cases which has hitherto belonged to the seigniorial Lords.[2]
In 1195, a proclamation for the preservation
of the peace was issued by Archbishop Hubert, and in 1277, conservators were
developed[3].
Under Edward III, the commission of 1307 conservators was assigned some duties[4].
Under the pressure of social conditions, the role of conservators of the peace
was transformed into that of Justice of the Peace during the reign of Edward
III[5].
Good men and Lawful in the country were assigned to keep the peace[6].
With the lapse of time, the population crafts grew complex demanding the
country for redressing their grievances. One of the ways to redress the
grievances of the sick and weak has become the responsibility of the Justice of
the Peace. All over the world, justice of the peace has been known as a
judicial officer of inferior rank having limited civil jurisdiction for the
trial of small cases to some extent as prescribed by law. The office of justice
of the peace was a considerable antiquity, and his jurisdiction has varied from
time to time, depending on his authority or statutes.
The actual title "Justice of the
Peace" was first introduced in a law enacted in 1361 in
The institution of Justice of Peace has
become particularly essential ingredient to ensure peace and harmony in the
society. There is no denial of the fact that, with the lapse of time, the
earlier theory of Justice of Peace has blossomed into an Institution with
multiple benefits. The establishment of the development of the institution of
Justice of Peace has its origin in ancient time, though in different forms, but
with the rise of modern states, sophisticated legal, and management strategy
presided over by the skilled and trained judicial officers were established
with the responsibility to their respective areas.
With the passage, of time, due to various
factors of feudalism, imperialism, institutional instability, judicial
complications, and political intervention, the process of getting social
justice became complicated expensive and painful. The collection of complaints
against police excesses etc. and delayed justice also put a strain on the
achievement of organizational as well as the judicial System. This led to the
origin of the realization of the importance of this Institution for the
enforcement policy and timely disposal of cases pertaining to keeping of order
in the society. In this study, the attempt has been made to discuss the various
methods being utilized globally, especially in our country towards the
achievement of the desired results. For the accomplishment of this research
proposal, the name, historical origins, appointment, complaint handling, origin
in
DISCUSSION
The title of the present research itself
suggests its concept, purpose and scope. The aim behind the legislation of
justice of the peace was seeking directions against Government agency whereupon
Justice of Peace has jurisdiction within its local area.
The office of Justice of the Peace, due to
its effectiveness and credibility has developed the sense of confidence in the
common inhabitants of the country. There are effective arrangements for
redressing the grievances of the common man of the society.
The office of Justice of the Peace in
In
In Pakistan, the Sessions Judges, and
nominated Additional Sessions Judges by them in the relevant districts has been
conferred an additional role as Justices of Peace[12]
regarding handling complaints, issuance of recommendations to the duty police
officers regarding registration of criminal cases, transfer of investigation,
and on negligence, failure, or excesses happened by a police characteristic in
relation to their functions and duties.
A citizen of
By virtue of their respective offices[16],
the Judges of the High Courts[17]
are Justices of the Peace[18] through out
The District Magistrates by virtue of their
office subject to the territories were also nominated as Justice of the Peace[23]
but afterwards the office of justice of the peace got a ride of The District
Magistrates[24]. The
Justices of The Peace were appointed[25]
with the designation of Justices of the Peace for Mufassil[26].
A[27]
Provincial Government[28],
so for, as regards the territpries subject to its
jurisdiction other than the presidency town[29]
may, by notification assign for this office such persons who are a citizen of
Pakistan[30], but
not a person, being the subjects of any foreign state[31].
The Justices of Peace were appointed in Sindh[32]
for a local area assigned through the notification, and in the
A Complaint is the primary means to take the
Justice of the Peace into motion. The complaint is the request made to the
justice of peace, informing him of the crime committed, and requesting process[34],
if the officer in-charge of the police station declines to enter the data or
neglect to fulfill statutory duties. It is the foundation of all proceedings as
required by law, and, in practice, is usually reduced to technical form by the
justice of the peace himself from the rough story of the complaint. It should
be made to Police agency of the jurisdiction where the crime is alleged to have
been committed or where the offence has begun[35]
in one area, and completed in another, jurisdiction attaches in the latter.[36]
Justice of the Peace within his jurisdiction has the power of arrest, as are
available to a police-officer for affecting arrest without warrant of vagabond,
ordinary robbers etc. He under the requirement of law is duty bound to carry
arrested person to officer in charge of the nearest police- station with a
statement and such officer shall thereupon re-arrest the person.
Justice of the Peace may call upon any member
of the police force, in his authority, to assist him in some essential means to
prevent crime in the prevention of a breach of the peace or a disruption of the
public tranquility. Such call shall be considered to have been made by a
competent authority. A Justice of the Peace subject to the prescribed procedure
of the Provincial Government, may issue the identity certificate for any person
residing within his jurisdiction; or, verify the document; or, certify the
document with the presumption as the same are attested by the Magistrate.
Justice of the Peace, on receipt of
information about the happening of an occurrence involving a violation of the
peace, or of the commission of any crime within his jurisdiction, forthwith
press inquiries into the matter and put the result of his inquiries to the
nearest Magistrate in writing and to officer in charge of the concerned
police-station. In a cognizable offence, he prevents the deletion or
disturbance in any matters related to the place of occurrence. Whenever his
services are required by a police-officer in writing while conducting an
investigation under Chapter XIV of the Code of Criminal Procedure, justice of
the peace must in his jurisdiction provide complete aid to the police-officer
in his investigation; and record the statement made by a person under the
probability of death in respect of whom a crime is assumed to have been
committed.
The present system of recording first
information report by the Police is the negation of the fundamental rights of
the citizens. None recording of the statements in cognizable offence had become
the practice of the day. The current system of police in criminal matters about
the change of investigation from one police officer to other police officer
does not conform to the principles of justice, and the provisions of the Constitution
which protect the constitutional rights of the citizens. The current system is
executive oriented in which the police department is the prosecutor, the judge
and arbitrator as well. Grievance against such plan has been raised by the
citizens. Experience has shown that the police officers deciding transfer of
investigation in a criminal investigation or similar activities are under the
entire control of the District Police Officer. The future of investigation
entirely depends upon the whims, liking, disliking and sweet will of DPO and
police department as well. Therefore, there is a general impression that such
system can not provide complete and unbiased
investigation procedure.
The direction of the role of the Justice of
the Peace has been turned wrongly by competent authorities. It is necessary to
quote the interpretation of Section 22 A (6) (ii) of the Criminal Procedural
Code made by the Judicial authorities, that the Justice of the Peace does not
have any right to issue directions for recommending transfer of investigation
of a criminal case, being beyond his scope. Rather such Fiscal Statute speaks
as "An ex-officio Justice of the Peace may issue appropriate directions to
the police authorities concerned on a complaint regarding, Transfer of
investigation from one police officer to another". The law relating to
Contempt of Court is considered as alien about non-compliance of any direction
issued by him. Direction issued by Justice of the Peace is grounded as issued
by the lawful authority in terms of the provisions of Police Order, 2002. Every
police officer is, under an obligation, to obey[37],
and promptly execute all lawful directions issued by justice of the peace.
CONCLUSIONS
Office of Justice of the peace is a way of
examination, analysis and evaluation of negligence, insufficiency or excess
committed by the police personals with a view to ensure fair Police functions
as fast, reasonable and justified. Office of the justice of the peace is a
managing tool, used to validate the information pertaining to cognizable
offences, Transfer of investigation, eradication of negligence, biases and
discriminatory treatment on the part of police while dealing the legal process.
In the modern ages, Today in
RECOMMENDATIONS/SUGGESSIONS
Though significant changes have been brought
on the pattern of Police Laws by introducing office of Justice of the Peace,
but there has been a long and enormous demand of citizens, to give him
strengthens, as well as to prevent horizontal movement of Judicial Officers
between the Police department and Justice of the peace.
To achieve this objective, there could be;
(1) Short
term proposal.
(2) Long
term proposals.
1 Short
Term Proposal;
The
following short term proposal can be implemented immediately:
It
is proposed that the Law Justice and Human Rights Division Government of
Pakistan, Apex Court, as well as, Higher Courts of the Country, should be taken
suo motu action
to ensure the implementation of the provisions of Fiscal Law relating to the
Justice of the Peace, and Section 22 A (6)(ii), the
Criminal Procedure Code, 1898 should be construed in accordance to the words of
Fiscal Statute without any interpretations.
2 Long
Term Proposals
i. Special
Law regarding the Justice of the Peace in the shape of Act should be introduced
whereby an entire Preamble, Scope, Extent and commencement; Definitions,
Jurisdiction and Bar of Jurisdiction; Limitations, Appeal and Review;
Application of Code, and other essential procedure ought to analyses the
functions of Justice of the Peace be regulated.
ii. Code of Conduct for Justice of the
Peace should be recognized.
iii. There should be development of safe and
systematic strategy for dealing complaints as well as in the procedure related
to the disciplines of the office of justice of the peace.
iv. Implementing agencies should be allowed
to use the funds for its improvement, generated at the local level on charges
of violating constitutional rights and regulations.
v. There should be an appropriate agency
to conduct implementations, and such agency should have the necessary powers to
enforce implementation, and the complainant about the implementations of the recommendations
passed by the justice of the Peace.
vi. There is a need to develop mechanisms
for effective enforcement and necessary infrastructure.
vii. Office should introduce public hearing
systems through introducing of handling of online complaints.
viii. There is a need to use judicial activism
for redressing the public litigations.
ix. A clear mechanism to determine
coordination between Justice of the Peace and Police Departments for crime
screening for public sector need to be developed.
x. The human resource with the capacity to
review the reports and evaluate the quality of Justice of the Peace. The
process to review is not quite streamlined due to defect in checks and
balances; thus, a panel of experts for review regarding the regulation of
justice of the Peace is needed, along with a framework for improving them.
xi. Law, Justice, and Human Rights Division,
Government of
xii. The future and development of Justice of
the Peace depends on a proper selection of the person of high repute, integrity,
independence and unblemished person having high judicial experience and legal
back ground. It is the person of worth at the top that makes the difference.
Time has come to take a decision which will make or unmake this institution.
xiii. The Provincial Governments should set up
programs/workshops/seminars/conferences to raise the level of awareness, and
demand of the public about the merits and demerits of the scope of Justice of
the Peace.
[1] Moyle, Imperatoris lustiniani Institutiones, 629; Pollock, Oxford Lectures, 70.
[2] (Pollock and Maitlait, ii, 464). (History of
[3] Patent Rolls, Edward 1, 1272-1281, 218,
219.
[4] Parliamentary Writs,
Vol. II, Division II, Part 2, Pages 8, 9 and 11.
[5] I Edward III, S. 2, C. 14.
[6] I Edward III, S. 2, C.16.
[7] Grolier Encyclopedia of
Knowledge (Published 1993 by Grolier Incorporated).
[8] Substitute by Law
Reforms Ordinance, 1972, Notification No. OSD (C) home-1-10/82 dated
[9] Substitute by Act 38 of 1920.
[10] Mian Khan and Others Versus Inspector-General of Police,
[11] Substituted by Ordinance
No. CXXXI of 2002, dated
[12] Section 25,Part
I, Chapter II (E), Criminal Procedure Code, 1898.
[13] Section 25,Part
I, Chapter II (E), Criminal Procedure Code, 1898.
[14] Government of
[15] Section 22,Part
I, Chapter II (E) of Criminal Procedure Code, 1898.
[16] The Words "The G. G., Governors,
Lieutenant-Govemors, and Chief Commissioners, the
Ordinary Members of the Council of the G. G., and" Rep. By
Government of
[17] Substituted For "The Judges of The
High Courts and The Recorder of
[18] Substituted by The
[19] Substituted by Ordinance
21 of 1960.
[20] Substituted by
Ordinance, 21 of 1960 Section 3 and 2nd Sch. (w.e.f.
[21] Sections 23 and 24 Part I, Chapter II (E)
of Criminal Procedure Code, 1898.
[22] Criminal Law Amendment
Act, 1923 (XII of 1923).
[23] Act, 38 of 1920.
[24] Ordinance XXXVII of 2001 vides Article, 12
of Code of Criminal Procedure (Amendment) Ordinance, 2001.
[25] Substituted by Laws Reforms Ordinance (XII
of 1972), Notification No. Osd (C)-Home-I-10/82-In
Exercise of The Powers Conferred By 1972), The Governor of The Punjab is
Pleased To Appoint The 20th Day of December, 1982to Be The Day on Which The
Provisions Contained In Serial No. 10 of The Schedule To The Said Ordinance
Relating To The Sub-Situation of Section 22 of The Code of Criminal Procedure,
1898 (V of 1898) Shall Come Into Force Throughout The Province of The Punjab, w.e.f. 20-21-82.
[26] Substituted by Act, 38
of 1920, Section 2 and Schedule I For The Original Section.
[27] Substituted by The
Central Laws (Statute Reform) Order 21 of 1960, Section 3 and Second Schedule,
For "Every".
[28] Government of
[29] The Words "Other Than The Presidency
Towns" Were Rep. By The Criminal Law Amendment Act, 12 of 1925 Section, 3.
[30] Substituted By
Ordinance, 21 of 1960 Section 3 and 2nd Sch. (w.e.f.
[31] The Words "European British
Subject" Was Rep. By Criminal Law Amendment Act, 12 of 1925 Section, 3.
[32] Subs. By L.R.O
1972, Section 2 & Sch. Item 10 and Enforced In Sindh
Vide Notification No 7 (488) Soj/79, Dated
[33]
[34] Sections 22A & 22B.
The Code of Criminal Procedure (Act V of 1898).
[35] Mr. Ghulam Zohra Vs The State & another,(1969
P.Cr.L.J 67).
[36] Section 177, The
Code of Criminal Procedure (Act V of 1898).
[37] Article 4(1) (m) of the
Police Order, 2002.