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Lawyer secures High Court ruling against magistrate

Oct 01, 2010 News

Chief Justice Ian Chang on Wednesday ruled in favour of attorney-at-law Mursaline Bacchus in his battle against Magistrate Adela Nagamootoo in the case of a stolen carcass. The attorney had moved to the High Court after serving a notice on the magistrate and citing certain authority that she should refer it to the High Court.
The magistrate refused and the lawyer moved to the High Court.
The Chief Justice after listening to arguments from both sides had ordered the magistrate to show reason why the order should not be made absolute and be referred to the High Court.
After listening to further arguments the judge agreed with the lawyer submissions and granted the order thus compelling the magistrate to refer the matter to the High Court.
The matter in contention saw the police versus James Ramlochan, called ‘Ribs’, a butcher of Station Street, Reliance East Canje, Berbice.
Ramlochan is charged with unlawful possession of a carcass. The matter is being tried before Magistrate Nagamootoo at the Reliance Magistrate’s Court.
Mr. Bacchus is contending that the section under which his client is charged is unconstitutional as it contravenes his constitutional rights, under article 144(2) (a) of the Constitution.
The Attorney, also in his notice to the magistrate, had asked her to pay attention to the section of the law which in part reads “everyone charged before the court with having in his possession, or under his control, in any manner or in any place, anything which is reasonably suspected to be stolen or unlawfully obtained, which does not give an account, to the satisfaction of the court, as to how he came thereby, shall be liable to a fine of five hundred dollars or to imprisonment of six months.”
Mr. Bacchus is submitting that the unconstitutionality is obvious in that the burden of proof that is cast on his client under Section 94(1) is directly in contravention of the presumption of innocence enshrined in Article 144(2) of the constitution.
The Attorney had also submitted that the constitution is the Supreme law of the land and any other law which is inconsistent with it is deemed, as far as such inconsistency is concerned, to be void as stated in Article 8.
Mr. Bacchus had thus requested that the magistrate, before proceeding any further with the trial, refer the question of unconstitutionality or otherwise of section 94 to the high court, as is provided for under article 153(3) of the constitution.
The lawyer in his petition to the high court had stated that the magistrate had on or about June 16, ruled that she would not refer the question to the High Court. The lawyer claimed that the matter was neither frivolous nor vexatious and in other words the magistrate refused to perform the absolute duty cast upon her by Article 153(3) of the constitution.
In his ruling the Chief Justice compelled the Magistrate to refer the question of the constitutionally of the charge of unlawful possession under Section 94 of the Summary Jurisdiction act to the High Court to consider whether the section offends the presumption of innocence as enshrined in article 144 of the constitution.
The court also held that if the constitutionality of any of the provisions of the summary jurisdiction act is raised before a magistrate, that Magistrate cannot determine whether the raising of that question is frivolous or vexatious by him or herself interpreting the constitution, which Magistrates are precluded from doing.
The high court also granted cost totaling $30,000.

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