–which empowers DPP to direct Magistrates

MURDER accused, Guyanese-American businessman, Marcus Bisram, through his attorney, Darshan Ramdhanie, QC, is petitioning the Caribbean Court of Justice (CCJ) to declare a section of the Criminal Law (Procedure) Act unconstitutional.

During the virtual hearing of the matter on Thursday, Ramdhanie put forward his arguments before the seven-member panel of judges at the CCJ in support of Bisram’s challenge of the Guyana Court of Appeal’s ruling that he stand trial for the 2016 murder of Berbice carpenter, Faiyaz Narinedatt.

Ramdhanie had in initially asked the CCJ to strike down Section 72 (1) and (2) (ii) (b) of the Criminal Law (Procedure) Act which empowers the Director of Public Prosecutions (DPP), Shalimar Ali-Hack, SC, to, inter alia, direct a magistrate to commit an accused person to stand trial in circumstances where said magistrate, after conducting a Preliminary Inquiry, discharges that accused person.

His position is that the section upon which the DPP based her directive is unlawful, as it infringes Bisram’s constitutional rights as provided for by Articles 122 (A) and 144 (1) of the Constitution of Guyana, and the Separation of Powers doctrine.

Article 122 (A) provides that, “All Courts and all persons presiding over the courts shall exercise their functions independently of the control and direction of any other person or authority; and shall be free and independent from political, executive, and any other form of direction and control.”

According to Mr. Ramdhanie, the DPP, purportedly acting under the provisions of Section 72, had sought to exercise a judicial function by directing a magistrate to, in effect, ignore her [the magistrate’s] finding of the lack of evidence, and to commit Bisram to stand trial in the High Court.

“The Learned DPP’s directive was based on her opinion that there was sufficient evidence to commit Bisram to stand trial,” Ramdhanie said, adding:
“In other words, the Learned DPP, a part of the Executive arm of the State, was exercising a function vested solely in the judicial arm of the State.”

OF FUNDAMENTAL IMORTANCE  
In what he deemed to be of “fundamental importance”, Ramdhanie said that all the appellant is asking of the the CCJ is to reverse and/or set aside the Order and Judgment of the Court of Appeal, and to declare Section 72 unconstitutional, in view of Article 122 (A) (1) of the Constitution of Guyana.

Another main thrust of the defence’s argument is whether the DPP’s directions/instructions offend the doctrine of Separation of Powers, and her actions infringe on the independence of the judiciary.

Given the foregoing lines of argument, Ramdhanie put it to the CCJ that the power to adjudicate in criminal proceedings is vested exclusively in the courts, and no one else, and that the provisions of Section 72 not only have the effect of undermining the judicial power of the judiciary, but also impinge on the doctrine of Separation of Powers and the independence of the judiciary.

Ramdhanie, among other things, is contending that the DPP’s directive was unlawful, as it infringed upon Bisram’s constitutional rights, as provided for in Articles 122 A and 144 (1) of the Constitution of Guyana, and the Separation of Powers doctrine.
However, this contention was roundly rejected by the DPP, who contended that when making the directive, she’d acted within the ambit of the powers vested in her under the Constitution of Guyana and statute.

According to Ms. Ali-Hack, Section 72, entails a desecration of the DPP, and it is not mandatory. “The DPP must act in an informed, fair and just manner when dealing with the case,” Ms. Ali-Hack said.

She contended that there is sufficient evidence against Bisram to warrant a committal for him to face trial by a jury before a judge. The DPP contends that the evidence is sufficient, and any reasonable jury, if properly directed, can safely convict.

Ali-Hack said that contrary to the appellant’s argument, she is legally empowered to order a magistrate to reinstitute charges on Bisram, under Section 72 of the Criminal Law Offences Act.

Given this right to direct the Magistrate to reopen the Preliminary Inquiry (PI), and commit the accused to stand trial, the DPP said that her directive for Bisram to be committed to do so was proper, reasonable and lawfully made.

A REMARKABLE CONCEPT
At this point, the CCJ’s Justice Jacob Wit interjected, saying: “This is a remarkable concept; I don’t know of any legal system where this happens.”
When questioned directly by Justice Wit about Section 72, and the “nature and characteristics” of her function, as he was “puzzled” when it came to her directing a Magistrate to commit a person, Ms. Ali-Hack’s response was:

“The legislation was created, and that has been the system here in Guyana all the years… The DPP had to act from an informed position, based on the evidence, and this is in the public’s interest.”

Justice Denys Barrow, who cut to the chase very quickly, said: “This is my point; that the intention in Guyana was not for the DPP to be a judge over, or to interfere with, the judicial function of the magistrate, but rather administratively.”

And Ms. Ali-Hack’s simple response was that the DPP’s administrative function is also quasi-judicial in nature.
It was at this point that the CCJ decided to reserve its judgement in the appeal, and asked the parties to file their submissions.
Recently, during a case management hearing, the CCJ suspended the judgment of the Court of Appeal until it hears and determines the appeal that has been filed by Bisram.

It also ordered the DPP not to take any additional steps in the existing criminal proceedings to further the prosecution of Bisram, including but not limited to any steps to detain him, pending the hearing and determination of the case before it.

The CCJ further ordered that Bisram surrender his passport to the Registrar of the Supreme Court of Judicature of Guyana, and that he remains in Guyana and presents himself to the Divisional Commander or Deputy Commander of ‘B’ Division by 12:00 hours on every Monday until the determination of the appeal.

BACKGROUNDER
On May 31, 2021, the Court of Appeal ruled in favour of a case filed by the DPP to challenge the decision made by Justice Simone Morris-Ramlall on June 1, 2020, to free Bisram.

Justice Morris-Ramlall had granted several Orders, which led to Bisram’s release. The first Order granted by the trial judge was for the quashing of the decision the DPP made on or about March 30, 2020, directing Magistrate Renita Singh to reopen the preliminary inquiry into the charge against Bisram, with a view to committing him for the said charge, on the ground that the decision of the DPP was unreasonable, unlawful, and made by ignoring relevant considerations and ultra vires.

The second was an Order of Certiorari for the quashing of the decision of the DPP, directing Magistrate Singh to commit Bisram for trial in the High Court. Additionally, the judge granted an order which prohibited the DPP from proffering an indictment in the High Court charging Bisram.
Following the judge’s ruling, Bisram walked out of the Camp Street Prison on June 2, 2020, after the final documents were signed.

Dissatisfied with this turn of events, the DPP then moved to the Court of Appeal, seeking to overturn the ruling. In delivering the court’s unanimous decision in May, Chancellor (ag) of the Judiciary, Yonette Cummings-Edwards said: “We are of the view that the committal proceedings by the magistrate, and the direction by the Director of Public Prosecutions would not have been invalid.”

In the circumstances, Bisram had to turn himself over to the police, and was placed on remand to stand trial for the capital offence of murder before the High Court.

Bisram is accused of being the mastermind in the killing of Berbice carpenter, Faiyaz Narinedatt, on October 31, 2016. Narinedatt’s body was found on the Number 70 Village Public Road in Berbice.

The next day, police arrested his alleged assailants, who subsequently confessed that the flamboyant Bisram had ordered them to commit the killing. It is alleged that it was because the carpenter spurned his sexual advances that Bisram ordered the hit on him.

Bisram had returned to the United States after the crime was committed, but was extradited to Guyana in November 2019, after spending over two years in prison.