Govt. set to cut powers of DPP

Mar 18, 2022 News

– following landmark ruling by CCJ in Marcus Bisram case

By Rehanna Ramsay

Kaieteur News – The recent ruling by the Caribbean Court Justice (CCJ) has set the stage for Guyana to amend its laws to curb the excessive power of the Director of Public Prosecutions (DPP).
This is according to Attorney General and Legal Affairs Minister, Anil Nandlall, SC. During a recent airing of his Facebook commentary “Issues in the News,” Nandlall spoke of the court ruling. He noted that given the finding of the Court that the DPP has powers that authorises a non-judicial organ to instruct a judiciary or a component of the judiciary, and that power transgresses the doctrine of separation of powers, and is unconstitutional since the judiciary as a whole is independent.

Attorney General and Legal Affairs Minister Anil Nandlall SC.

The CCJ on Tuesday ruled in the case where the Director of Public Prosecutions (DPP), Shalimar Ali Hack, SC, had ordered that Guyanese-American businessman Marcus Bisram be committed to face a trial in the High Court for murder despite a judicial ruling that there was not enough evidence against him. At the CCJ, Bisram’s attorney, Darshan Ramdhanie, QC, had asked the CCJ to strike down Section 72 (1) and (2) (ii) (b) of the Criminal Law (Procedure) Act which empowers the DPP, to, inter alia, direct a Magistrate to commit an accused person to stand trial in circumstances where the said Magistrate, after conducting a Preliminary Inquiry, discharged that accused person.
In the decision, the CCJ made the order that “Until the National Assembly makes suitable provision Section 72 is modified to excise those provisions permitting the DPP to direct the Magistrate. In lieu thereof, a DPP aggrieved at the discharge of an accused by a Magistrate after the whole of the proceedings at a 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 the judge justified such a course of action.”
In his commentary, the AG said, “That provision cannot withstand constitutionality, and the CCJ struck it down and basically has indicated to us in Guyana that we will have to go to Parliament to modify or amend that provision. They are suggesting that power be transferred from the DPP and be resided in a judge of the High Court. To this end, Nandlall said Government will be moving to amend the law. “It’s a very progressive ruling, and we will have to amend the law to suit, since that is the highest court of our judiciary and there is no appeal beyond that,” the AG noted.

Director of Public Prosecutions, Shalimar Ali Hack, SC.

Bisram was extradited from the United States to Guyana in 2019 to face the murder charge, following a prolonged fight in the US courts to block the extradition.
The US–based Guyanese was facing a murder charge for the death of Berbice carpenter, Faiyaz Narinedatt. He was discharged twice by a Magistrate for the murder but was recharged at the directions of the DPP. The matter reached the Guyana Court of Appeal last year and after a decision that he must face a complete trial for the murder, Bisram and his team of lawyers took the matter to the CCJ. In delivering the ruling on Tuesday, the President of the CCJ, Justice Adrian Saunders upheld Ramdhanie’s contentions and allowed the appeal. The CCJ also ordered that the decision made by the Magistrate to dismiss the murder charge against Bisram be restored. It was ordered that Bisram not be committed for trial only on the evidence led before the Magistrate.
Justice Saunders emphasised nonetheless, that nothing prevents the DPP from re-arresting and charging Bisram if fresh evidence is found. “The Court also found that it would be unjust, in all of the circumstances, for Bisram to be made to answer any charge of murder in this case on the same evidence as was presented to the Magistrate.
However, because Bisram, at least in terms of the law, was never placed in jeopardy, nothing prevents the DPP from having him re-arrested and charged again if fresh evidence was obtained linking him to the alleged murder,” the CCJ judge said in the decision.
The CCJ also declared 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 CCJ noted that if the DPP wants to instruct a Magistrate in the future to commit any accused person to stand trial , the DPP will have to move to the High Court first.
On June 1, last, the Court of Appeal handed down a ruling in favour of the DPP who had asked that the decision by High Court Judge, Simone Morris-Ramlall, be overturned. Morris-Ramlall had acquitted Bisram of the murder charge despite orders by the DPP that he be committed to face a murder trial in the High Court. Bisram had previously faced a preliminary trial in the Magistrates’ Court. Magistrate Renita Singh, after a preliminary inquiry, had ruled that there was insufficient evidence to send him to the High Court for trial.
The DPP had, however, invoked her powers under Section 72 (1) and (2) (ii) (b) of the Criminal Law Offences Act, and directed the Magistrate to reopen the inquiry with a view of committing Bisram to the High Court for trial. Her directions were complied with but Bisram challenged the DPP’s right to instruct the Magistrate. In a subsequent decision Justice Morris-Ramlall quashed the DPP’s orders. Justice Morris-Ramlall also ordered that the DPP be prohibited from instituting the charges against Bisram again. It is this order that the DPP challenged in the Appeal Court. Bisram through his attorney, Arudranauth Gossai, had cross-appealed challenging the DPP’s right to order the Magistrate.