Tuvalu

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I. Country History

The Tuvalu Islands are situated in the Pacific Ocean, between Hawaii and Australia. Their closest neighbors are the Kiribati islands, Samoa and Fiji. Tuvalu is the fourth smallest country in the world, and it is amongst the most remote islands in the pacific. It is made up of 9 islands, with 5 coral true atolls, 3 reef atolls, and 1 island with both characteristics. Tuvalu’s land area is approximately 26 square kilometers, the average elevation is 1 meter above sea level, and the highest point is approximately 5 meters above sea level. Besides, because of the limited availability of land, there is an overpopulation on Funafuti, the main island, and there is not enough space to create infrastructures for waste disposal. This results in the pollution of the water and the soil, which is thus not fertile and does not have the capacity to support a lot of agricultural production. In recent years, Tuvaluans have resorted to imports of foods and goods.

While the land area is small, the Marine Exclusive Economic Zone, spans 900,000 square kilometers, making the waters Tuvalu’s most valuable resource. The composition and morphology of the island makes it highly vulnerable to environmental issues, like sea level rise or erosion.

Tuvalu was formerly known as Ellice Islands, named after Edward Ellice, a British politician, who owned the boat thanks to which the atoll of Funafuti was discovered in 1819. The islands were first inhabited 2000 years ago by Samoa and Tonga peoples, but the most recent culture seems to go back only 300 years. The Ellice islands were under British protectorate from 1892 to 1916. In 1974, the Ellice islands voted for independency, and they finally became independent on October 1st 1978. Tuvalu applied for commonwealth membership and became a member of the United Nations in 2000. The name Tuvalu, meaning “eight islands standing together” was adopted during the independence of the country.

II. Type of System

• The Executive

The British monarch is the Head of State, they are represented by the Governor General, appointed on the advice of the prime minister and the cabinet. The Prime minister is chosen by the elected members of Parliament, and the Cabinet is appointed by the Governor General. The Cabinet is comprised of the prime minister, the deputy prime minister and the members of parliament. The attorney general is the legal advisor of the government, the secretary to government coordinates the work of ministries and offices of government.

• The Legislature

The Parliament is elected through universal suffrage and is composed of one chamber of 15 members. Each island elects two members apart from Nukulaelae, which has the smallest population, which elects one member. The parliamentary elections are held every four years.

• The Judiciary

According to Section 122 of the Constitution of Tuvalu, “The judicial system of Tuvalu consists of – (a) the Sovereign in Council (as provided for in Division 4); and (b) the Court of Appeal for Tuvalu (as provided for in Division 3); and (c) the High Court of Tuvalu (as provided for in Division 2); and (d) such other courts and tribunals as are provided for by or under Acts of Parliament.” The “other courts and tribunals” provided by Acts of parliament include, Senior Magistrates' Courts, Island Courts, and Land Courts.

• The Court System

- The Sovereign in Council

Section 139 of the Constitution states that an appeal can be made from a decision of the court of appeal to the sovereign in council, which has jurisdiction to hear appeals on three matters according to section 1.a. of the Constitution : “(i) in the case of a final decision on a question as to the interpretation or application of this Constitution; or (ii) in the case of a final decision in proceedings under Division 5 (Enforcement of the Bill of Rights) of Part II; (iii) in the case of – (A) a final decision; or (B) an interlocutory decision, that is to say, a decision of a kind referred to in subsection (2),”

- The Court of Appeal

Under Section 138 of the Constitution, this court has jurisdiction to hear of matters regarding appeals against determinations as to contraventions of the Bill of Rights, appeals on questions as to membership of Parliament and any act of Parliament.

- The High Court

The High Court is established under Section 123 of the Constitution, and Section 133 sets the jurisdiction of the High court, which relates to : the bill of right and its enforcement, questions of membership or parliament, constitutional interpretation, appellate jurisdiction of the high court, effects of parliamentary declaration of purpose and other jurisdictions.

Under Section 56 of the Criminal Procedure Code (CPC), “The High Court may inquire into and try any offence subject to its jurisdiction at any place where it has power to hold sittings: Provided that, except under section 70 of the CPC, no criminal case shall be brought under the cognisance of the High Court unless the same shall have been previously investigated by a magistrate’s court and the accused person shall have been committed for trial before the High Court.” Section 53 of the CPC sets the general authority of the high court and magistrates : " The High Court and every magistrate’s court has authority to cause to be brought before it any person who — (a) is within Tuvalu and is charged with an offence committed within, or which may be inquired into or tried within, the local limits of its jurisdiction; or (b) is within the local limits of its jurisdiction and is charged with an offence committed within Tuvalu, or which according to law may be dealt with as if it had been committed within Tuvalu, and to deal with the accused person according to its jurisdiction.”

- The Magistrates Court

This Court was established through the Magistrate’s Court Act. Section 20 of the CPC establishes the powers of the magistrates courts as : “Subject to any other provision of this Act and to the provisions of any other law for the time being in force in Tuvalu, every magistrate’s court shall have and exercise jurisdiction in civil and criminal matters as in this Act provided.”

The court has :

-> Civil Jurisdiction under section 22 of the CPC: “(1) The jurisdiction of a magistrate’s court in civil causes and matters shall be limited as provided by this section and by any other law for the time being in force. (2) No magistrate’s court shall have jurisdiction in any civil cause or matter in respect of which original jurisdiction to hear and determine the same is conferred on a lands court by the Native Lands Act. (3) The Governor-General in consultation with the Chief Justice may by order limit the civil jurisdiction of magistrates’ courts in such manner as he may think fit and such an order may make different provision for the Senior Magistrate’s Court from that made for other magistrates’ courts. (4) Subject to any law for the time being in force, if in any suit or civil cause or matter before a magistrate’s court the title to any land is disputed or the question of the ownership thereof arises the court shall — (a) where original jurisdiction to hear and determine such dispute or question is conferred by law upon any lands court, transfer the dispute or question to that lands court for adjudication or determination and until such adjudication or determination (and if any appeal lies therefrom the effluxion of the time within which such appeal may be lodged and, if any such appeal is lodged, its final determination) adjourn the suit, civil cause or matter wherein such dispute or question arose; or (b) where original jurisdiction to hear and determine such dispute or question is not conferred by law on any lands court, if all the parties interested therein consent, adjudicate thereon or, if they do not so consent, apply to the High Court to transfer such suit, cause or matter to itself.”

-> Criminal jurisdiction under section 25 of the CPC: “(1) Subject to the provisions of any other law for the time being in force, the Senior Magistrate’s Court shall have jurisdiction to try summarily any criminal offence — (a) for which the maximum punishment prescribed by law for such offence does not exceed — (i) 14 years’ imprisonment; or (ii) a fine; or (iii) both such imprisonment and such fine; or (b) in respect of which jurisdiction is by any law expressly conferred upon the Senior Magistrate’s Court or it is expressly provided that such offence may be tried summarily: Provided that the maximum punishment which the Senior Magistrate’s Court may impose shall not exceed — (i) a term of imprisonment for 5 years; or (ii) a fine of $1,000; or (iii) both such imprisonment and such fine. (2) Subject to the provisions of any other law for the time being in force, a magistrate’s court shall have jurisdiction to try summarily any criminal offence — (a) for which the maximum punishment prescribed by law for such offence does not exceed — (i) imprisonment for a term of 1 year; or (ii) a fine of $200 dollars; or (iii) both such imprisonment and such fine; or (b) in respect of which jurisdiction is by any law expressly conferred upon a magistrate’s court or it is expressly provided that such offence may be tried summarily. (3) Notwithstanding the provisions of the preceding subsections, the Senior Magistrate, by order under his hand, may invest a magistrate’s court, and the Chief Justice, by order under his hand and the seal of the High Court, may invest the Senior Magistrate’s Court and any magistrate’s court with jurisdiction to try summarily any offence which would otherwise be beyond its jurisdiction.7 8 9 (4) In the case of consecutive sentences imposed by a magistrate’s court in respect of 2 or more distinct offences arising out of the same facts it shall not be necessary for such magistrate’s court to send the offender for trial before the High Court by reason only that the aggregate punishment for the several offences in respect of which such sentences are imposed is in excess of the punishment which it is competent to impose on conviction for a single offence: Provided that the aggregate punishment imposed in the form of consecutive sentences shall not exceed twice the amount of the punishment which such magistrate’s court is competent to impose in respect of one offence in the exercise of its ordinary jurisdiction.”

- The Island Courts

Each Island has a court, subordinated to the Senior Magistrates court. It has jurisdiction within the limits of the islands on which it is situated, on both civil and criminal causes. The Powers of the Island courts are determined in Section 5 of the Island Courts Act : “(1) Subject to the other provisions of this Act and of any other law for the time being in force in Tuvalu, an island court shall have and exercise the jurisdiction in civil causes and matters for the time being set out in Schedule 1 and in criminal causes and matters for the time being set out in Schedule 2. (2) The Governor-General, after consultation with the Chief Justice, may by notice add to, amend or delete any part of Schedules 1 or 2.”

- The Lands Court

Each Island has a Land court, established under the Native Lands act. These courts are responsible for matters relating to land, wills, inheritances and adoptions, etc…

III. Source of Defendant’s Rights

There are five sources of law in Tuvalu: the Constitution, Acts of Parliament, the Common Law, Customary Law, Applied Laws and the Common Law

• The Constitution

Tuvalu is Governed by a written constitution, which is the supreme law of the land. It came into force on 1 October 1978, when the State obtained independence from Great Britain. It was revised in 1986, 2008 and in 2022

• Acts of Parliament

The acts of parliament are the second most important laws of Tuvalu. These acts serve as primary legislation, governing various aspects of life and administration in the country. They cover a wide range of areas, including criminal law, civil law, land ownership, environmental protection, education, health, etc…

• Customary Law

Customary law is generally applied in land title disputes and civil and criminal cases in the Magistrate’s court, if it aligns with natural justice, equity, and conscience, and does not conflict with any laws. It is also used in all courts for civil and criminal matters unless it contradicts the Constitution or existing legislation.

• The Common Law

Common Law is the body of law based on judicial decisions and precedents from English legal traditions. It is used alongside customary law to address legal issues not covered by statutes, if it doesn't conflict with the Constitution or other laws.

• Applied Laws

Applied Laws refer to laws that were inherited from other legal systems, particularly those of the United Kingdom, and are incorporated into the legal framework of Tuvalu. They include the British Statutes and Common Law and the Laws of the Gilbert and Ellice Islands Colony.

The primary barrier to accessing justice in Tuvalu is the shortage of human resources and institutional capacity. Addressing this issue is crucial. The urgent need for qualified lawyers at the Office of the People’s Lawyer and other public offices is evident, as many Tuvaluans lacked legal advice and representation, despite limited assistance from the Attorney General’s Office.

IV. Defendant’s rights

Tuvalu is committed to upholding the rule of law, ensuring legal protection and equality for all. The Constitution guarantees fair trials, presumption of innocence, and the right to be informed in a language understood by the accused, along with adequate time to prepare a defense.

The Tuvalu Bill of rights, included as Part II of the Constitution, grants several rights and freedoms to Tuvaluan, including but not limited to : Freedom under law, the fundamental human rights and freedom (right not to be deprived of life, personal liberty, personal security, protection of the law, freedom of belief, freedom of expression, freedom of assembly and association, protection for the privacy of property), under sections 10 and 11 of the CPC.

1. Pre-Trial

• Arrest

Under Part III of the criminal procedure code, Section 10 : “ (1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action. (2) If such person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest: Provided that nothing in this section contained shall be deemed to justify the use of greater force than was reasonable in the particular circumstances in which it was employed or was necessary for the apprehension of the offender. » The last part of this section is reinforced by Section 13 of the CPC which states that “ The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.”

Section 18 of the CPC specifies the situations in which a person can be arrested by a police officer without warrant, that includes : “ (a) any person whom he suspects upon reasonable grounds of having committed a cognizable offence; (b) any person who commits any offence in his presence; (c) any person who obstructs a police officer while in the execution of his duty, or who has escaped or attempts to escape from lawful custody; (d) any person in whose possession anything is found which may reasonably be suspected to be stolen property or who may reasonably be suspected of having committed an offence with reference to such thing; (e) any person whom he suspects upon reasonable grounds of being a deserter from His Majesty’s Army or Navy or Air Force; (f) any person whom he finds in any highway, yard or other place during the night and whom he suspects upon reasonable grounds of having committed or being about to commit a felony; (g) any person whom he suspects upon reasonable grounds of having been concerned in any act committed at any place out of Tuvalu which, if committed in Tuvalu, would have been punishable as an offence, and for which he is, under the Extradition Act 1870 or the Fugitive Offenders Act 1967, or otherwise, liable to be apprehended and detained in Tuvalu; (h) any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of housebreaking; (i) any person for whom he has reasonable cause to believe a warrant of arrest has been issued; (j) any released convict committing a breach of any provision prescribed by section 40 of the Penal Code or of any rule made thereunder.”

If a person is arrested by a police officer without a warrant, the police officer “shall, without unnecessary delay and subject to the provisions of this Code as to bail, take or send the person arrested before a magistrate having jurisdiction in the case or before an officer of or above the rank of sergeant or before the officer in charge of the nearest police station.”, according to section 20 of the Criminal Procedure Code.

Section 21 of the CPC allows Private persons to arrest “any person who in his view commits a cognizable offence, or whom he reasonably suspects of having committed a felony, provided a felony has been committed.” It also states that “Persons found committing any offence involving injury to property may be arrested without a warrant by the owner of the property or his servants or person authorized by him.”

The Prisoners when arrested either by a police officer or by a private person, may be searched, however, “The right to search an arrested person does not include the right to examine his private person.” The section also specifies that “Whenever the person arrested can be legally admitted to bail and bail is furnished, such person shall not be searched unless there are reasonable grounds for believing that he has about his person any (a) stolen articles; or (b) instruments of violence; or (c) tools connected with the kind of offence which he is alleged to have committed; or (d) other articles which may furnish evidence against him in regard to the offence which he is alleged to have committed.” Additionally, section 16 of the CPC declares that if a woman has to be searched, the search must be made by another woman.

• Custody

If a person was arrested without a warrant, section 23 of the CPC provides that if the person was arrested “for an offence other than murder or treason, the officer of or above the rank of sergeant or the officer in charge of the police station to whom such person shall have been brought may in any case and shall, if it does not appear practicable to bring such person before an appropriate magistrate’s court within 24 hours after he has been so taken into custody, inquire into the case, and unless the offence appears to the officer to be of a serious nature, release the person on his entering into a recognizance with or without sureties, for a reasonable amount to appear before a magistrate’s court at a time and place to be named in the recognizance, but where any person is retained in custody he shall be brought before a magistrate’s court as soon as practicable: Provided that an officer of or above the rank of sergeant or the officer in charge of the police station may release a person arrested on suspicion on a charge of committing any offence, when, after due inquiry, insufficient evidence is, in his opinion, disclosed on which to proceed with the charge.”

An accused person has to be sent to the district where they commited the offence according to section 54 of the CPC : “Where a person accused of having committed an offence within Tuvalu has removed from the district within which the offence was committed but is found within another district, the court within whose jurisdiction he is found may cause him to be brought before it and shall, unless authorised to proceed in the case, send him in custody to the court within whose jurisdiction the offence is alleged to have been committed, or require him to give security for his surrender to that court, there to answer the charge and to be dealt with according to law.”

• Who can be detained

The Section 17 of the CPC, delimiting the limits of personal liberty, ascertains that “no person shall be detained except, with his consent or” :

“a) in the case of a person under the age of 18 years - in the reasonable exercise of the authority of a parent, teacher or guardian, or under the order of a court for the purpose of his education, welfare or proper discipline; or (b) under a warrant or order of a court; or (c) for the purposes of extradition; or (d) in order to bring the person before a court to be dealt with in accordance with law; or (e) in the case of detention of a person on reasonable suspicion of his having committed, or being about to commit, an offence; or (f) in the case of reasonable temporary detention of a person for the avoidance of actual or apprehended violence, disorder or breach of the peace; or (g) in the case of reasonable temporary detention of a person so affected by drink or a drug to make detention desirable for his own protection or that of others; or (h) in the case of detention of a person for quarantine or health purposes; or (i) in the case of detention of a person under the laws relating to unlawful immigration or to deportation; or (j) in the case of detention of a person incidental to the arrest or seizure of a vehicle, vessel or aircraft; or (k) in the case of detention of a person as a prisoner of war or, subject to Division 4 (Public Emergencies), as a civil or military internee in time of war; or (l) in the case of detention of a person required by and for the purposes of any international or multi-national convention, treaty or arrangement to which Tuvalu is a party and which is approved by Parliament, by resolution, for the purposes of this paragraph; or (m) in the case of restrictions on liberty or detention of a person permitted by section 26 (freedom of movement) or Division 4 (Public Emergencies).”

Or a person can be detained, according to paragraph 4 of the same section : “(a) for the purpose of bringing him before a court; or (b) on reasonable suspicion of having committed, or being about to commit, an offence; or (c) for temporary purposes, in accordance with subsection (2)(f) or (g), and who is not released, shall be brought without undue delay before a court, and unless the court, in accordance with law, orders his continued detention, it shall order his release.”

This section continues by declaring that “A person who is detained shall be informed as soon as practicable, and in a language that he understands, of the reason for his detention.” And the section concludes by affirming that “If a person detained on suspicion of having committed an offence is not tried within a reasonable time, he shall be released either unconditionally or on reasonable conditions (including in particular conditions reasonably necessary to ensure that he appears for trial or for proceedings preliminary to trial).”in paragraph 5.

• Public Emergencies

Tuvalu has a special provision providing for guidelines for detentions during public emergencies within section 37 of the CPC: “(1) If a person is detained by virtue of a law authorized only by section 36 (restrictions on certain rights and freedoms during public emergencies) – (a) he shall, as soon as practicable and in any case not more than 10 days after the beginning of his detention, be furnished with a written statement, in a language that he understands, stating in detail the grounds on which he is detained; and (b) not more than 14 days after the beginning of his detention a notice shall be published – (i) in the manner prescribed for the publication of subordinate legislation; and (ii) in such other manner (if any) as is directed by the Chief Justice; and (c) not more than one month after the beginning of his detention, and afterwards at intervals of not more than six months, his case shall be reviewed by an independent and impartial tribunal established by law and presided over by a person who – (i) is qualified to practice before the High Court; and (ii) is appointed by the Chief Justice for the purpose; and (d) he shall be given reasonable facilities to consult, at his own expense, a representative of his own choice, who shall be permitted to advise and assist him and to make representations to the tribunal; and (e) at the hearing of the case he shall be permitted to appear in person or, at his own expense, by a representative of his own choice.

(2) On a review under subsection (1)(c), the tribunal may make recommendations to the authority that detained him concerning the necessity or desirability of continuing the detention, but unless it is otherwise provided by law that authority is not obliged to act in accordance with any such recommendation. (3) A failure to comply with subsection (1)(b) does not invalidate the detention.”

• Rights in Prison

Section 42 of the CPC provides the period of time for which security is required, “ (1) If any person in respect of whom an order requiring security is made under section 34 or 40 is, at the time such order is made, sentenced to or undergoing a sentence of imprisonment, the period for which such security is required shall commence on the expiration of such sentence. (2) In other cases, such period shall commence on the date of such order unless the magistrate, for sufficient reason, fixes a later date.”

When there is a failure to give security, section 46 of the CPC authorizes the release of imprisoned persons : “Whenever a magistrate is of opinion that any person imprisoned for failing to give security may be released without hazard to the community, such magistrate shall make an immediate report of the case for the orders of the Senior Magistrate’s Court, and such court may, if it thinks fit, order such person to be discharged.”

• Discharge from custody

Section 1908 of the CPC states that : “(1) As soon as the recognisance with or without sureties, as the case may be, has been entered into the person admitted to bail shall be released and when he is in prison the court admitting him to bail shall issue an order of release to the officer in charge of the prison and such officer on receipt of the order shall release him. (2) Nothing in this section shall be deemed to require the release of any person liable to be detained for some matter other than that in respect of which the recognisance was entered into.”

2. During the trial

The law ensures defendants have the right to a fair public trial, with a presumption of innocence upheld by an independent judiciary. Defendants are informed of charges, provided free interpretation, and given access to legal counsel and resources. They can confront and present witnesses, access evidence, and appeal convictions. They cannot be forced to testify or confess guilt, and all these rights apply to every defendant.

•Trial in the absence of the defendant

In certain cases, section 186 of the CPC authorizes the court to proceed to the hearing in absence of the accused in certain case, “Notwithstanding the provisions of section 179, if an accused person charged with any offence punishable with imprisonment for a term not exceeding 6 months or a fine not exceeding $100 or both such imprisonment and fine does not appear at the time and place appointed in and by the summons, or by any bond for his appearance that he may have entered into, and his personal attendance has not been dispensed with under section 86, the court may, on proof of the proper service of the summons a reasonable time before, or on production of the bond, as the case may be, proceed to hear and determine the case in the absence of the accused or may adjourn the case and issue a warrant for the arrest of the accused in accordance with the provisions of section 89. »

However normally, under section 187 of the CPC, both parties shall appear in court : “If at the time appointed for the hearing of the case both the complainant, by himself or by his advocate, and the accused person appear before the court which is to hear and determine the charge, or if the complainant appears in the manner aforesaid and the personal attendance of the accused person has been dispensed with under section 86 the court shall proceed to hear the case. »

• Adjournment

Section 189 of the CPC provides that the court may adjourn the hearing to “ a certain time and place to be then appointed and stated in the presence and hearing of the party or parties or their respective advocates then present, and in the meantime the court may suffer the accused person to go at large, or may commit him to prison, or may release him upon his entering into a recognizance, with or without sureties at the discretion of the court, conditioned for his appearance at the time and place to which such hearing or further hearing is adjourned: Provided that no such adjournment shall be for more than 30 clear days, or if the accused person has been committed to prison, for more than 15 days, the day following that on which the adjournment is made being counted as the first day. »

3. Sentencing

Section 6 of the CPC states that “The High Court may pass any sentence authorised by law.” On the other hand, the magistrates court may pass certain sentences according to section 7 of the CPC : “(1) The Senior Magistrate’s Court may, in cases in which such sentences are authorised by law, pass the following sentences — (a) imprisonment for a term not exceeding 5 years; or (b) a fine not exceeding $1,000; or (c) both such imprisonment and such fine. (2) A magistrate’s court may, in the cases in which such sentences are authorised by law, pass the following sentences — (a) imprisonment for a term not exceeding 1 year; or (b) a fine not exceeding $200; or (c) both such imprisonment and such fine. (3) If a law provides for a fine for an offence, a court must not impose a fine of less than 25% of the maximum fine that can be imposed for the offence.”

Combinations of sentences are authorized under section 8 of the CPC : “(1) Any court may pass any lawful sentence combining any of the sentences which it is authorized by law to pass. (2) In determining the extent of the court’s jurisdiction under section 7 to pass a sentence of imprisonment the court shall be deemed to have jurisdiction to pass the full sentence of imprisonment provided in the said section in addition to any term of imprisonment which may be awarded in default of payment of a fine, costs or compensation.”

Section 9 legislates on the case of sentences in case of conviction of several offences at one trial : "(1) When a person is convicted at one trial of 2 or more distinct offences the court may sentence him, for such offences, to the several punishments prescribed therefor which such court is competent to impose; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the court may direct, unless the court directs that such punishments shall run concurrently. (2) In the case of consecutive sentences it shall not be necessary for a magistrate’s court, by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to impose on conviction of a single offence, to send the offender for trial before a higher court: Provided that the aggregate punishment shall not exceed twice the amount of punishment which such magistrate’s court is competent to impose in the exercise of its ordinary jurisdiction. (3) For the purposes of appeal or confirmation the aggregate of consecutive sentences imposed under this section in case of convictions for several offences at one trial shall be deemed to be a single sentence.”

• Conviction in absence of the accused before the magistrates court

If the conviction is made when the accused is absent, section 191 of the CPC provides that the court “may set aside such conviction upon being satisfied that his absence was from causes over which he had no control, and that he had a probable defence on the merits.”

Then, the Commencement of sentence passed in absence of accused, under section 186 to 190 “shall be deemed to commence from the date of apprehension, and the person effecting such apprehension shall endorse the date thereof on the back of the warrant of commitment”, according to section 192 of the CPC.

4. Delivery of judgement

Section 149 of the CPC states that :

“(1) The judgment in every trial in any criminal court in the exercise of its original jurisdiction shall be pronounced, or the substance of such judgment shall be explained, in open court either immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties and their advocates, if any: Provided that the whole judgment shall be read out by the presiding judge or magistrate if he is requested so to do either by the prosecution or the defence. (2) The accused person shall, if in custody, be required by the court to attend, or hear judgment delivered, except where the court has proceeded to the determination of the case in the absence of the accused under section 186, or where his personal attendance during the trial has been dispensed with and the sentence is one of fine only, or he is acquitted. (3) No judgment delivered by any court shall be deemed to be invalid by reason only of the absence of any party or his advocate on the day or from the place notified for the delivery thereof, or of any omission to serve, or defect in serving, on the parties or their advocates, or any of them, the notice of such day and place. »

5. Court Procedures

• High court

The powers of the High court are laid out in section 280 of the CPC : “ (1) At the hearing of an appeal the High Court shall hear the appellant or his advocate, if he appears, and the respondent or his advocate, if he appears, and the High Court may thereupon confirm, reverse or vary the decision of the magistrate’s court, or may remit the matter with the opinion of the High Court thereon to the magistrate’s court, or may make such other order in the matter as to it may seem just, and may by such order exercise any power which the magistrate’s court may have exercised: Provided that the High Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. (2) At the hearing of an appeal the High Court may, if it thinks that a different sentence should have been passed, quash the sentence passed by the magistrate’s court and pass such other sentence warranted in law (whether more or less severe) in substitution thereof as it thinks ought to have been passed. (3) The High Court may at any stage adjourn the hearing of an appeal.” Regarding the High Court’s criminal Jurisdcition, section 239 of the CPC sets out that “Subject to the provisions of this Code and of any rules of court, the practice of the High Court in its criminal jurisdiction shall be assimilated so far as circumstances admit to the practice of His Majesty’s High Court of Justice in its criminal jurisdiction and of Courts of Oyer and Terminer and General Gaol Delivery in England.”

• Magistrate court

The practice and procedure of the Magistrate’s court are st our in section 53 of the Magistrate’s court act : “Subject to the provisions of any other law for the time being in - force, the jurisdiction vested in magistrates’ courts shall be exercised (so far as regards practice and procedure) in the manner provided by this Act or by any other Act for the time being in force relating to criminal or civil procedure, or by rules of court, and in default thereof, in substantial conformity with the law and practice for the time being observed in England in county courts and courts of summary jurisdiction.”

Section 75 relates the rules of the court : “The Chief Justice may make rules of court under this Act for all or any of the following purposes — (a) for regulating the practice and procedure of magistrates’ courts in matters not specifically provided for in this or any other Act; (b) for regulating the forms to be used and all matters connected therewith; (c) for regulating the receipt of moneys paid into a magistrate’s court, or received or recovered under or by virtue of any process, execution or distress; (d) for regulating the payment of moneys out of a magistrate’s court to persons entitled thereto; (e) for prescribing the books and forms of account to be kept or used in magistrates’ courts; (f) for prescribing fees, costs and amounts for service of process which may be demanded and received by clerks of court and others in connection with the practice and procedure of the magistrates’ courts; (g) for prescribing for the acceptance, retention and disposal of fees and costs; (h) for fixing tables of fees and costs recoverable by legal practitioners for their services on taxation and providing for the taxation of the same; (i) for the better carrying into effect of the provisions and objects and intentions of this Act. “

The rules relating to cases states by the magistrate’s court are given by section 285 of the CPC : “(1) After the hearing and determination by any magistrate’s court of any summons, charge or complaint, either party to the proceedings before the said magistrate’s court may, if dissatisfied with the said determination as being erroneous in point of law, or as being in excess of jurisdiction, apply in writing within 1 month from the date of the said determination, including the day of such date, to the said magistrate’s court to state and sign a special case setting forth the facts and the grounds of such determination for the opinion thereon of the Senior Magistrate; and the Senior Magistrate may in like manner seek the opinion of the High Court. (2) Upon receiving any such application the magistrate shall forthwith draw up the special case and transmit the same to the Registrar of the High Court together with a certified copy of the conviction, order or judgment appealed from and all documents alluded to in the special case and the provisions of section 276 shall thereupon apply. »

6. Appeals

• High court

Appeals can be made to the high court according to section 270 of the CPC : “(1) Save as hereinafter provided, any person who is dissatisfied with any judgment, sentence or order of a magistrate’s court in any criminal cause or matter to which he is a party may appeal to the Senior Magistrate, or, if the judgment, sentence or order was made by the Senior Magistrate’s Court, to the High Court, against such judgment, sentence or order: Provided that no appeal shall lie against an order of acquittal except by, or with the sanction in writing of, the Attorney-General. (2) When a person convicted on trial by a magistrate’s court is not represented by an advocate he shall be informed by the magistrate of his right of appeal at the time when sentence is passed. (3) An appeal may be on a matter of fact as well as on a matter of law. (4) For the purposes of this Part the extent of a sentence shall be deemed to be a matter of law. (5) The Attorney-General shall be deemed to be a party to any criminal cause or matter in which the proceedings were instituted and carried on by a public prosecutor.”

There are limitations to appeals in cases of guilty and petty cases, as announced in section 271 of the CPC :

“(1) No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted of such plea by a magistrate’s court, except as to the extent or legality of the sentence. (2) Save with the leave of the High Court, no appeal shall be allowed in a case in which a magistrate’s court has passed a sentence of a fine not exceeding $10 only, notwithstanding that a sentence of imprisonment has been passed by such court in default of the payment of such fine, if no substantive sentence of imprisonment has also been passed. (3) No conviction or sentence, which would not otherwise be liable to appeal, shall be appealable merely on the ground that the person convicted is ordered to find security to keep the peace.”

• Magistrate court

Appeals can also be made in the magistrate court, according to article 39 of the Magistrate court act (MCA) : “ (1) Subject to the provisions of this or any other Act, an appeal shall lie to the Senior Magistrate’s Court — (a) from all final judgments and decisions of any magistrate’s court in any suit or matter before it; and (b) from all interlocutory orders and decisions of any magistrate’s court made in the course of any suit or matter before it: Provided that where the magistrate’s court in question is the Senior Magistrate’s Court, the appeal shall lie to the High Court. Notwithstanding the provisions of subsection (1), no appeal shall lie, except by special leave of the magistrate’s court or of the Senior Magistrate’s Court or of the High Court, as the case may be, from any order or decision made by consent, ex parte or as to costs only.”

Section 40 of the MCA further precises that : “neither the Senior Magistrate’s Court nor the High Court shall entertain any appeal arising from any suit or matter unless the appellant has fulfilled all the conditions of appeal imposed by the magistrate’s court or by the Senior Magistrate’s Court or the High Court, as the case may be, or as prescribed by rules of court.”

The Magistrate court has the power to entertain appeals according to section 42 of the MCA : “Notwithstanding anything hereinbefore contained the Senior Magistrate’s Court and the High Court may entertain any appeal on any terms which it may think fit.”

The court also has the power to hold criminal appeals according to section 43 of the MCA : “(1) Where by any other law, appeals in criminal causes lie to the High Court from any magistrate’s court, such appeals shall lie to the Senior Magistrate’s Court, except where such appeals are from the Senior Magistrate’s Court, in which case they shall lie to the High Court. (2) In respect of every appeal in a criminal cause to the Senior Magistrate’s Court from a magistrate’s court, the provisions of sections 281, 282, 283 and 284 of the Criminal Procedure Code shall apply as if every reference therein to the High Court were a reference to the Senior Magistrate’s Court.”

The Magistrate court serves as an appellate jurisdiction and has revisional powers under section 44 of the MCA : “ (1) A magistrate’s court shall have power to review any judgment, sentence or order of any island court within the limits of the district within which such magistrate’s court is situated and shall have the jurisdiction to hear and determine appeals from any judgment, sentence or order (including any question of law reserved for its consideration by way of case stated) of any such court and may for those purposes exercise such powers and authority as may be conferred upon it by or under any law for the time being in force; and, subject to the provisions of any such law, for all the purposes of and incidental to any such review or the hearing and determination of any such appeal, a magistrate’s court shall have all the powers, authority and jurisdiction vested in the island court which dealt with or determined the case under review or from which such appeal is brought. (2) If any person considers himself aggrieved by the decision of any magistrate’s court either in exercise of its power of review or upon any appeal, such person may appeal to the Senior Magistrate’s Court and the Senior Magistrate’s Court shall have like power, authority and jurisdiction as had the magistrate’s court from which the appeal is brought.”

• Bail

Conditions of bail or of the suspension of sentences pending appeal are laid out by section 277 of the CPC :

“(1) Where a convicted person presents or declares his intention of presenting a petition of appeal, the High Court or the court which convicted such person may, if in the circumstances of the appeal case it thinks fit, order that he be released on bail, with or without sureties, or if such person is not released on bail shall, at the request of such person, order that the execution of the sentence or order against which the appeal is pending be suspended pending the determination of the appeal: Provided that if such order be made before the petition of appeal is presented and no petition is presented within the time allowed, the order for bail or suspension shall forthwith be cancelled. (2) Where the appellant is released on bail or the sentence is suspended, the time during which he is at large after being so released or during which the sentence has been suspended shall be excluded in computing the term of any sentence to which he is for the time being subject. (3) An appellant whose sentence is suspended but who is not admitted to bail shall during the period of such suspension be treated in like manner as a prisoner awaiting trial. »