Our Court System
As elsewhere, justice for our people is dispensed through a system of ordinary courts and administrative machinery charged with responsibility for the settlement of disputes which arise between citizen and citizen and between individuals and the State. The ordinary courts are organized in the form of a hierarchy with superior courts at the top and inferior ones at the base. The superior courts are the Judicial Committee of the Privy Council, popularly known as the Privy Council, and the Eastern Caribbean Supreme Court comprising the Court of Appeal and the High Court of Justice. The inferior courts include Magistrate's courts and Coroners' courts. Superior courts are distinguished from their inferior counterparts mainly on two counts. One is the scope of their jurisdiction; the other is the power vested in them to supervise the jurisdiction exercised by inferior courts. Further, there are a variety of administrative Boards and Tribunals which, though not courts in the ordinary sense, carry out dispute-settlement functions.
The base of the court system is occupied by the Coroners' courts. The jurisdiction of these courts is generally to hold inquests into the death of persons who are reasonably respected to have died in unusual circumstances. Such circumstances include where the death is thought to have been caused by violence or from causes "other than those certified by a duly qualified medical practitioner as resulting from a recognized disease or in the ordinary course of nature; or where the death was sudden and the cause unknown; or where the death took place in prison or in a psychiatric hospital or "other place of lawful detention" such as in police custody; or where it is reasonably suspected to have been caused by an injury inflicted by a police officer in purported execution of his or her duty. The purpose of the inquest is not to lay blame for the death. Thus, a coroner has no jurisdiction to find anyone guilty of an offence which caused the death of the victim. And, in the same vein, a Coroner is not empowered to charge any person with having committed an offence. His or her duty is merely to inquire into sudden and unexplained deaths.
Nonetheless, in carrying out his or her duties, a Coroner may summon a jury of five persons "and no more". And a verdict of four of the five persons is taken as a verdict of the jury. Further, where the verdict of the jury is that the person died as a result of murder, manslaughter or infanticide, that is to say, the killing of an infant, a Coroner has jurisdiction to issue a warrant for the apprehension of the suspect as well as to offer bail to the suspect. But an inquest is not a trial. Hence, a Coroner must transmit all records of the inquiry to the Director of Public Prosecutions. This must be done within no more than seven days after completion of the inquest.
A lesser known function of a Coroner's court is to investigate the cause of fires. This is carried out where someone applies for this to be done or, alternatively, where in the Coroner's opinion, the circumstances of the fire call for an inquiry. The conduct of proceedings in coroners' courts is governed by the Coroners Act, Chap. 4:30 of the Revised laws of the Commonwealth of Dominica.
In ascending order of seniority is the Magistrate's Courts. As is well known, a number of such courts sit in various magisterial 'districts' of the island. They are charged with the conduct of preliminary inquiries (P.Is) into serious crimes to determine whether on the facts as presented the Accused should be committed to stand trial in the High Court. Magistrate's courts also have power to hear application by the public for liquor licences.
But their main function is to try a wide range of not so serious criminal offences and civil matters. As to criminal offences, the power to do so stems from that they have summary jurisdiction in respect of crimes deemed to be not serious. Such crimes include breaches of the law committed by juveniles, traffic violations, minor incidents of theft, receiving stolen goods, assault and battery and wounding. Among civil matters are child maintenance, domestic violence, trespass to land, commercial claims, and civil suits arising from assault, battery and wounding.
Magistrate's courts also have jurisdiction to try some serious offences. Two classes of such crimes come to mind, namely, drug offences and violations of the Customs (Control and Management) Act, Chap. 69:01. This jurisdiction is held because these crimes are triable "either-way", that is to say, in a Magistrate's Court or in the High Court; the choice rests with the Accused. It should be noted that, as to civil matters, the jurisdiction of a Magistrate's Court is limited to $10,000.00. This means that a claim in excess of that amount is a matter for the High Court. The conduct of proceedings in Magistrate's courts is governed by the Magistrate's Code of Procedure Act, Chap. 4:20.
Then, there is the High Court of Justice. It is a superior court and, as stated earlier, is a part of the wider Eastern Caribbean Supreme Court which serves the Organization of Eastern Caribbean States (O.E.C.S) sub-region, of which Dominica is a member. As stated earlier, the High Court has jurisdiction to try cases sent up from a Magistrate's Court on preliminary investigation. Further, it has unlimited jurisdiction on civil matters, including land, commercial claims, divorce, defamation, judicial review of action taken by public officers, matters of probate, and applications of all sorts, including for injunctions. Notably, the High Court is invested with power to hear and decide on matters involving interpretation of the Constitution, as well as to make declarations and grant relief to persons whose rights and freedoms guaranteed by the Constitution have been or are being contravened.
The Court of Appeal is the upper component of the Supreme Court. As its name suggests, the Court hears appeals from courts, namely, Magistrate's Courts and the High Court; evidently, there is no appeal from findings of Coroner's courts. The Court of Appeal is presided over by a team of three Justices. In certain cases, however, an appeal from a decision by a Magistrate is taken to a single Judge of the High Court. To be noted is that, unlike the High Court in respect of which the presiding Judge is based in the host country, the Court of Appeal functions as a circuit Court. From its current base in St. Lucia, it holds court in member States as the occasion arises or the situation demands. The structure, jurisdiction and proceedings of the Court of Appeal are governed by the Eastern Caribbean Supreme Court (Dominica) Act, Chap 4:02, and the Eastern Caribbean Supreme Court Civil Procedure Rules 2000.
A party who is dissatisfied with a ruling of the Eastern Caribbean Court of Appeal, whether civil or criminal, may appeal to the Judicial Committee of the Privy Council. That party may take his or her case there as of right or by leave of the Court of Appeal or by special leave of the Privy Council. The Privy Council stands at the top of the hierarchy of our Courts. In effect, it is our highest Court, from which there is no further appeal. The Council sits in England and is presided over by the most learned of Justices, some of whom are recruited from the Commonwealth outside of the United Kingdom. You are reminded that Dominican-born Justice Telford Georges has the distinction of having served as a member of the Privy Council. The functions of the Privy Council are provided for under Section 106 of our Constitution.
Needless to say, the Judicial Committee of the Privy Council is a relic of our colonial past. It was established as the court of last resort for the colonies of the Mother Country, while the House of Lords functioned, as it still does, as the court of last resort for citizens of the United Kingdom. In fact, the Privy Council was thought to be so indispensable to the dispensation of justice to former colonial subjects that, on the acquisition of independence, its existence as our highest Court was deeply entrenched in our various Constitutions. This means that amendment of the entrenching clause requires a special procedure. In our own case, Section 42 (3) (e) of our Constitution provides that abandonment of the Privy Council as our highest Court would require a majority vote of not less than three-quarters of all the elected members of Parliament. In addition, that vote is to be approved by a majority of Dominicans voting by secret ballot in a referendum. That is required by Section 42 (3) (b) of our Constitution. But, Section 42 (4) (a) states that where there is agreement between the government of the United Kingdom and our own to dispense with the services of the Privy Council, there is no need for a referendum.
The Privy Council remains the highest Court in almost all Caribbean Commonwealth jurisdictions. That is the case after 50 years of constitutional independence in Trinidad and Tobago, the same passage of time in Jamaica, and 34 years in our own country. Since the late 1980s sitting members of the Privy Council have severally recommended in various rulings that the now-independent former colonies ought to assume full responsibility for dispensation of justice to their citizenry. In or about 2004 the Caribbean court of Justice was formally launched. Today, eight years later, three members only of the Caribbean community of nations have fully embraced the Court.
A final point needs to be made. It is that in the settlement of legal disputes the work of ordinary courts, that is to say, Magistrate's Courts, the High Court of Justice, the Court of Appeal and the Judicial Committee of the Privy Council, is greatly complemented by the efforts of 'non-court' bodies on the outside, so to speak, of the ordinary court system. Foremost among them are Tribunals and Boards set up, whether under the Constitution, or whether by Statute or Ministers' decisions, as machinery for the adjudication of legal disputes. A case in point is the Public Service Board of Appeal, provided for by Sections 93 and 94 of our Constitution to hear appeals by public officers against decisions to remove them from office or to exercise disciplinary control over them. Another is the Rent Tribunal, established under the Tenancies and Rent Control Act, Chap. 54:72 to resolve disputes pertaining to protected tenancies. A third is the Industrial Relations Board appointed by the Minister under Section 4 of the Industrial Relations Act, Chap. 89:01, and the various Tribunals selected by the Board, to adjudicate on labour disputes. A fourth is the Board of Assessment, provided for under the Land Acquisition Act, Chap. 53:02, to hear questions and claims of persons whose land has been acquired by the State. And, yet another is the agency of Arbitrators and Umpires provided for by the Arbitration Act, Chap. 4:50, to settle disputes in respect of civil matters.
A last word. The continued retention of the Privy Council 34 years after our constitutional break from the mother country makes a veritable mockery of the concept of political sovereignty and the practice of our nationhood. How dare we claim nationhood and in the same voice think in terms of retaining her Majesty's Privy Council as the highest court in our land? Where is our sense of history? And where is our vision of the future? What has become of the legacy of struggle left for us by Balla, Farcel, Congaree and Angelique, by Charles George Falconer, by Colaire, by Cecil Rawle and, more recently, by Emanuel Loblack and Edward Leblanc? Quite obviously, the Caribbean Court of Justice, like courts everywhere, will be faced with problems arising whether from conflicts of interest or the personal biases of one or other jurist. Immense, seemingly irresolvable, problems. But these are human questions that must be resolved by weathering the tides and storms rather than by running into the nearest safe haven.
So construed, the abandonment of the Privy Council and our embrace of the Caribbean Court of Justice are long overdue. We are persuaded, then, that the task that lies ahead is for all of us to scrupulously dissect the institutional arrangements of the Caribbean Court of Justice with a view to determining whether or not the concerns we have about the contemporary system of justice in our country are adequately met. If they are met, that is the end of the matter. But, if they are not, we must struggle to secure reform of the C.C.J's questionable provisions, rather than cling to the Privy Council, the last visible symbol of our dehumanized past. This, not the unexamined condemnation of our Caribbean Court, is the essence of our patriotism.
Last week's "You and the Law" stated in the last line that the Eastern Caribbean Supreme Court (Dominica) Act, Chap. 4:02 "is treated as a component of our Constitution." That is incorrect. It is the Supreme Court Order, Chap. 4:01 which, for certain purposes, is so treated. The Supreme Court Order established the Supreme Court.
(c) William Para Riviere, December 2012.