May 03, 2011 News
Chief Justice Ian Chang on Friday delivered a land mark decision in the High Courts of Guyana when he ruled in favour of Attorney at law Mursaline Bacchus who had filed a motion in the upper court seeking to compel Magistrate Adela Nagamootoo to refer a matter which was before her in the magistrate court to the High Court.
Bacchus had moved to the high court after serving a notice on the magistrate and citing legal authority that she should refer the matter to the high court. The magistrate had refused.
The matter in contention is the police versus James Ramlochan called ‘Ribs’, a butcher of Station Street, Reliance, East Canje, Berbice who is charged with unlawful possession of a carcass.
Ramlochan is being tried before Magistrate Nagamootoo at the Reliance Magistrate’s Court. The carcass (beef) was allegedly found at Ramlochan’s home.
The Chief Justice had first granted an order Nisi for a writ of Mandamus directing Magistrate Nagamootoo to appear before him at the High Court to show cause why the writ or order of Mandamus should not be made absolute, compelling her to refer the matter under question to the higher court. He had also ordered that a sealed and certified copy be served on the magistrate.
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 Section 94(1) of chapter 8:02 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 $500 or to imprisonment of six months.
The attorney at law 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 concern, 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 is claiming that the matter is 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.
The magistrate in her rebuttal had stated that the charge was proper and she had jurisdiction in trying the matter.
The Chief Justice in his ruling concurred with the defence and ruled that Section 94 thus placed the burden of proving an essential ingredient upon the person charged and that it offends article 144 (2)A of the constitution.
He also ruled that section 94 was impliedly repealed by the fundamental rights provision of the presumption of innocence in article 144(2) A.
This landmark decision now means that no one can now be charged under section 94 for the offence of unlawful possession.
Ramlochan’s next court date is set for June 22 at the Reliance Magistrate court. It is expected that the matter will be dismissed or the prosecution will withdraw the case.
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