THE Caribbean Court of Justice (CCJ), in the early afternoon on Tuesday, ruled that section 72 of the Criminal Law (Procedure) Act which empowers the Director of Public Prosecutions (DPP), Shalimar Ali-Hack, SC, to direct a magistrate to commit an accused person to stand trial is unconstitutional and violates the separation of powers.

The ruling, which was delivered virtually at the Trinidad-based court by the President of the CCJ, Justice Adrian Saunders, stemmed from an appeal brought to the CCJ by Marcus Bisram who is accused of having a hand in the murder of Berbice carpenter, Faiyaz Narinedatt.

Bisram, through his attorney-at-law, Darshan Ramdhanie, QC, asked the court to strike down Section 72 (1), and Section 72 (2) (ii) (b) of the Criminal Law (Procedure) Act, which empowers the Director of Public Prosecutions (DPP) to, among other things, direct a magistrate to commit an accused person to stand trial in the High Court even if the said magistrate, after conducting a preliminary inquiry, discharges the accused person.

The appellant lawyer’s position is that the section of the Act upon which the DPP has based her directive is unlawful as it infringes upon Bisram’s constitutional rights provided for by Articles 122 (A) and 144 (1) of the Constitution of Guyana. He also contended that the provisions violated the doctrine of separation of powers among the legislative, judiciary, and executive branches of government.

Justice Adrian Saunders in handing down the CCJ’s decision agreed with Ramdhanie’s submissions and allowed Bisram’s appeal.

Firstly, the CCJ ordered that the decision of the magistrate to discharge Bisram be restored and that he may not be committed for trial except on the evidence led before the Magistrate.

The CCJ also agreed that Section 72 of the Criminal Law (Procedure) Act violates the separation of powers and is also inconsistent with Articles 122A and 144 of the Constitution.

The Court further ordered that until Guyanese lawmakers make suitable provisions, Section 72 is modified to excise those provisions permitting the DPP to direct the magistrate.

Saunders said that as an alternative, a DPP aggrieved at the discharge of an accused by a magistrate after the whole of the proceedings at a Preliminary Investigation (PI), may apply ex parte to a judge of the Supreme Court for an order that the discharged person be arrested and committed if the judge is of the view that the material placed before them justified such a course of action.

The CCJ allowed for the parties to engage on the awarding of costs, after which written submissions will be received by the Court for a decision by the justices.