JPs discuss draft amendments to constitution

Nov 09, 2008 News

…examine review of obsolete fee charges

The Guyana Justices of the Peace and Commissioner of Oaths to Affidavits Association met yesterday at the Georgetown Magistrates’ Courts to discuss amendments to the constitution of the association.

Special guest at the meeting was Justice Jainarayan Singh, who gave an overview of the functions of Justices of the Peace (JPs) and Commissioners of Oaths. He also made some suggestions.

Justice Singh said that the role of a Justice of the Peace and Commissioner of Oaths is what is called in law in persona, which means that the person who is swearing to the oath must appear before the JP. He noted that a practice has arisen whereby lawyers compose an affidavit and give it to their clerks to get it sworn.

“They have their clients sign it in their offices and then send their clerks to the JP to have it sworn. Let me tell you right away that is illegal. There is no question about it…the person must be before you.”

Justice Singh said that in the eight years that he has served as a High Court judge, there have been several such instances when he had to deal with lawyers abrogating their responsibilities.

One example, he recalled, was an affidavit being sworn to on one date and the person who allegedly swore to it had died the day before.

“One believes that a lawyer sending a Justice of Peace affidavits to be sworn would have done the right thing, but I am telling you now it is not a correct assumption…It is necessary, it is a duty in persona.”

Justice Singh also opined that the powers of Justices of the Peace should be enlarged, because the courts are overtaxed.

According to him, it should go back to the way it was in the 15th and 16th centuries, where a JP could resolve a difference and small disputes such as an issue over three inches of land, a small fight, etc.
Justice Singh contended that some small matters should not have reached the High Court.

“Your Association is very important, because you can petition the Chancellor to do courses.”
Another point that the judge made was the fact that the fees charged by a Commissioner of Oaths are woefully out of time, woefully aged, and are not with contemporary expenses of keeping an office.

“We will have to charge so much more. Affidavits here are paid for with little or nothing.” He noted that it is not in keeping with the price of paper.

“The price of swearing of affidavits and other documents must go up with the cost of living, and it has not done so, I believe, for about 50 years.”

He said that the constitution has been structured in such a way that most of the issues have been covered. He urged members to raise any other issues that they feel may have been overlooked in the constitution.

Justice Singh said that the post of Justice of the Peace was set up by the British since the 16th century, and the functions were to resolve difficulties that were considered minor between the inhabitants of villages.

These included trespass, one of the oldest offences known in law, assault (not assault with serious wounding, common assault) and minor marital disputes; and in those days JPs collected taxes (taxes on crops that were reaped by the inhabitants of the villages).

Also, he added, where there are no priests, the JP would perform the functions of a marriage officer.
“In the 19th and 20th Centuries, the functions of a Justice of the Peace have changed considerably. With the advent of the British Empire, Justices of the Peace performed the functions of a magistrate in the villages that were remote in countries like Guyana.”

The Judge also said that it was late in the 19th century that travel documents, medical, birth and marriage certificates were required to be sworn to by JPs. These were required by our British laws, and because of the constant movement of British civil servants within countries of the empire, the affidavit became the most popular function of the Justice of the Peace.

“Civil servants would be stationed in Guyana and would suddenly be moved to Trinidad. Certain of his works would have to be chronicled, and this was done by way of affidavit, and it had to be sworn before a Justice of the Peace.”

According to him, with the advent of the legal system in countries within the British Empire, the affidavit became an important and necessary tool of the lawyer. Justices of the Peace played an essential part — as they do today — in the entire legal system.

President of the association, Hermon Bholaisingh, and General Secretary, Derek Gulcharran, expressed appreciation for the participation of Justice Singh.

Hermon Bholaisingh said that he was looking forward to having other people from the legal fraternity visiting the association.

The general membership, in a sense, said that they found that the constitution was done some years ago, and needed to be updated.

“So, in making it relevant according to the times, we thought it best that we should make these changes, in order to make the association more effective in its role to the public.”

Also speaking at the meeting was attorney-at-law Harrichand Mahadeo, who urged the participants to become actively involved in the study and practice of mediation, in order to be able to play a role in reducing the backlog that exists in the courts.