Chief Justice knocks down Law of Unlawful Possession under Section 94 (1)
…Attorney General appeals Ruling
ACTING Chief Justice, Mr. Ian  Chang, S.C ., has knocked down the Law of Unlawful Possession under Section  94 (1)  of the Summary Jurisdiction (Offences) Act,  Chapter 8:02  on the ground that it clearly violates 144 (2) (a) of the Constitution of Guyana. Attorney General, Mr. Charles Ramson,  S.C., O.R., has challenged the ruling and has appealled the matter to the Guyana Court of Appeal.
This action had its genesis when James Ramlochan appeared before a Berbice magistrate charged with ‘unlawful possession of carcass’  under section 94 (1) of the Summary Jurisdiction (Offences) Act, Chapter 8:02.
By Order of the court dated the 29th  September, 2010, made in Motion No. 132 of 2010, Magistrate Adela Nagamootoo was compelled by Mandamus to refer to the High Court, for determination , the question whether the offence of  Unlawful  Possession as created by section 94 (1) of the  Summary Jurisdiction (Offences) Act, Chapter 8:02  is in contravention of Article 144 (2) (a) of  the Constitution of the Cooperative Republic  of Guyana 1980 which has enshrined the presumption of innocence as a fundamental right.
The Chief Justice said,  since the Magistrate has now complied with her constitutional duty under Article 153 (3)  and has referred the above question to the High Court as a question arising in the criminal matter of the Police vs. James Ramlochan, this court must now determine the above question as part of its  constitutional duty under Article 153 (3).
Chang said that Article133 (2) of the 1980 Constitution provides:
“It shall be the duty of a court to ascertain the truth in every case provided that every person who is charged with a criminal offence:
(a) Shall be presumed to be innocent until he is  proved or has pleaded guilty;”
The C.J.  added, “Since under section 94 (1), it is presumed that  a person is guilty  of the offence of Unlawful Possession when he is found in possession of a chattel or thing in circumstances of reasonable suspicion arising in the arresting by a detaining rank without the  court being satisfied as to the unlawfulness of his possession  unless he satisfies the court of the lawfulness of his possession, it is clear that section  94 (1) relieved the prosecution of proving the unlawfulness of possession and imposed on a defendant the burden of proving  the lawfulness  of his possession – albeit in circumstances of a suspicion  reasonably  entertained. Section 94 (1) therefore, clearly violates Article  144 (2) (a) of the Constitution.
At the hearing before the Chief Justice, the Deputy Solicitor General, Mr Nareshwar Harnanan appeared for the Honourable Attorney General, while Attorney-at-Law, Mr.  Murseline Bacchus represented the Respondent/Applicant.
The Appellant/Respondent, the Attorney General being dissatisfied with the decision  more particularly stated in paragraph 2 hereof of the High Court of the Supreme  Court of Judicature contained in the ruling of the Honourable Chief Justice (ag.) Mr. Ian Chang, S.C., in Motion No. 132 of 2011  delivered on the 29th day  of April,  2011  doth hereby appeal to the Court of Appeal upon grounds set out in paragraph 3, and will at the hearing of the appeal seek the relief set out in paragraph 4.
The grounds of Appeal are:
(a)     The learned Chief Justice (ag.) erred in law in finding that section 94 (1) of the Summary Jurisdiction (Offences) Act, Chapter 8:02 of the Laws of Guyana was supervened and impliedly repealed by article 10 (2) (a) of the 1966 Constitution  of  Guyana.
(b)         The learned Chief Justice erred in law in finding that section 94 (1) of the Summary Jurisdiction (Offences)  Act, Chapter 8:02 of the Laws of Guyana has been impliedly  repealed by Article 144 (2) (a) of the Constitution of the Republic of Guyana.
(c)       The learned  Chief Justice  erred in law in finding that section 94  of the aforesaid  Act  is unconstitutional, notwithstanding the express provision of section 7 (1) of the Constitution, Act No. 2 of 1980.
(d)       The learned  Chief Justice; erred in law in that the offence of Unlawful Possession under section 94 (1) of the Summary Jurisdiction (Offences) Act Chapter 8:02 of the Laws of Guyana contravenes Article 144 (2) (a) of the Constitution of the Republic of Guyana.
(e)       The learned Chief Justice misdirected himself in law in applying and relying  on ratio  decidendi of authorities based  on inanalogous statutes
and Constitutions of other States.
The Appellant/Respondent respectfully prays that the ruling of the learned Chief Justice (ag.) be set aside and/or reversed and that the Respondent/Applicant be ordered to pay costs in this court and the court below.