ACTION NO. 270 OF 2001

IN THE MATTER OF THE MISUSE OF DRUGS ACT, NO. 22 OF 1990

AND

IN THE MATTER OF A RESTRAINT ORDER PURSUANT TO SECTION 35 OF THE MISUSE OF DRUGS ACT

ACTION NO. 271 OF 2001

IN THE MATTER OF THE MISUSE OF DRUGS ACT, NO. 22 OF 1990

AND

IN THE MATTER OF A RESTRAINT ORDER PURSUANT TO SECTION 35 OF THE MISUSE OF DRUGS ACT

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BEFORE the Honourable Abdulai Conteh, Chief Justice.

Mr. Fred Lumor for the Applicant.

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In any context, I hold that s. 6(2) of the Constitution is over-arching, viz the presumption of innocence on any charge for any criminal offence.

The pillars of this arch in my view are the foundation of fair trial in all its plentitude, such as the right to know the charge, the opportunity to defend yourself and to prepare your case and to test the case against you.

S. 6(2) applies to any and every criminal offence - however heinous, detestable and socially and morally reprehensible like murder and, no doubt, as is drug trafficking.

But whatever revulsion an offence might evoke in right-thinking members of society, does not of itself, provide a warrant to jettison hallowed, recognized as enshrined Constitutional protection.

Any plain reading of s. 35(1) and (2) would immediately disclose that it undercuts the presumption of innocence.

Yes, the judge considering the application to make or not make a restraint order is given a discretion.

But why subject so vital a component, some would say the bed-rook, of a fair trial, to discretion however judicious?

The judge makes the determination on Affidavit evidence and when satisfied that there is a prima facie case against the person charged, he make the
In the first place, proceeding by Affidavit evidence is not to my mind wholly satisfactory, especially one that would not be tested on the anvil of cross-examination, as the application is almost invariably ex parte and by the scheme of the Act in Chambers, in a hush as it were.

Secondly, why put the onus on the judge of being satisfied that there is a prima facie case against the person against whom the Order is sought.

A judge's role and duty should be to hear both sides if possible, and decide the issue impartially. And in a criminal trial with a jury, to give fair and correct directions to the jury to enable them to reach their verdict.

In my view the fundamental importance of the presumption of innocence confers a right to an accused person, the right to the protection of the law, which lies at the heart of the notion of a fair trial guaranteed by sec. 6 of the Constitution.

Sec. 35(1) and (2) in my view seriously undermines and imperils this protection.

For what value is the protection if on a mere charge, without trial and even before trial, one side, the prosecution, can ask the Court to make what in effect is a Criminal Mareva order.

This is a draconian step which clouds over any pretence of the presumption of innocence.

The Act it may be noted says nothing about if the person charged, were acquitted at the end of the day. It only provides in sec. 35(4)(b) that a restraint order shall be discharged when proceedings for the offence are concluded.

But what happens to an innocent acquitted defendant against whom a restraint order had been issued?

By the scheme of the Act, particularly by section 35, merely to be charged makes one liable to the draconian consequences that may flow from a restraint order under that section.

Surely this cannot be right.

Of course, Act No. 22 of 1992 is an exercise of legislative power, which by s. 68 is given to the National Assembly, but this grant to make laws for the peace order and good government of Belize is subject to the provisions of the Constitution.

And by s. 2 of the Constitution the Constitution is declared to be the supreme law of Belize, and if any law is inconsistent with it, that other law is to the extent of the inconsistency, be void.

I hold s. 35 to be inconsistent with s. 6(3)(a) of the Constitution.
See A.G. v Jobe (1984) P.C.

The presumption of innocence should, in my view, avail not only during trial, but also at the pre-trial stage.

For what worth is the presumption if at the pre-trial stage (the charge stage) as is provided by No. 22 of 1992) an application can be made to a judge to order restraint.

The functions of the judge under s. 35 of the Act are no doubt judicial. In making a restraint order the judge would be exercising a judicial discretion. But I'm afraid it is a discretion however judiciously exercised trenches on the constitutionally guaranteed presumption of innocence.

A restraint order by the scheme of the Act, is the forerunner of a forfeiture order. But the latter only comes into play after conviction.