DPP’s directive for committal amounts to judicial interference – lawyer

Marcus Bisram appeal

…directive for committal lawful – DPP

Article 122 of the Constitution of Guyana reads: “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.”

When one considers a directive to Magistrate Renita Singh by Director of Public Prosecutions (DPP) Shalimar Ali-Hack, SC, for Guyana-born US citizen Marcus Bisram to be committed to stand trial for murder in the High Court, even though he was discharged after a preliminary inquiry, it amounts to obvious judicial interference, having regard to the above constitutional provision.
So contends Attorney-at-Law Arudranauth Gossai, who on Wednesday urged the Court of Appeal to dismiss an appeal filed by the DPP, in which she has asked the court to set aside an order granted by High Court Justice Simone Morris-Ramlall quashing as unlawful her directive to the Magistrate. The High Court order essentially sets Bisram free and prohibits the DPP from bringing a murder indictment against him.

Interference
According to Gossai, the directive from the DPP to the Magistrate, to commit Bisram to stand trial, offends the separation of powers’ doctrine. He contends that the determination of whether a prima facie case was made out is a judicial process that has to be determined by the Magistrate in the preliminary inquiry.
The lawyer reasoned that Article 122 A of the Constitution “created an independent judiciary, and expressly 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 form of direction and control.”

Against this backdrop, the lawyer argues that the directive of the DPP to the Magistrate was a clear attempt by the DPP to direct, influence, and control the Magistrate in her judicial function. Further, he underlined that any interference by the Executive on the Judiciary would offend the doctrine of the separation of powers and the independence of the judiciary, as envisaged by the Constitution.

Strike down
The DPP, in giving the directive for committal, used powers vested in her under Section 72 of the Criminal Law Offences Act. Gossai, however, is arguing that this provision is unconstitutional, since the provision infringes on Articles 122 (a) and 144 (1) of the Constitution and the doctrine of the separation of powers.
He urged the Court of Appeal to strike down, as being unconstitutional, the offending parts/provisions /words in the aforementioned Section of the Act. According to Gossai, the provisions of Section 72 (2) (ii) (a) seek to encroach on the judicial determination of a Magistrate. Such an encroachment, he pointed out, would offend the separation of powers doctrine.
“The DPP cannot seek to determine the outcome of the preliminary inquiry. If the Court were to hold that the DPP had such powers, it would, respectfully, mean that the DPP (the Executive) would be empowered to influence the court in a manner which is specifically prohibited by Article 122 A of the Constitution.”
Bisram’s lawyer has, moreover, submitted that the power to adjudicate in criminal proceedings vests exclusively in the courts and no one else, and the provisions of Section 72 of the Criminal Law Offences Act has the effect of undermining the judicial power of the Judiciary and impinge on the doctrine of separation of powers and the independence of the judiciary.
He said the provisions of Section 72 are manifestly inconsistent with the supremacy of the Constitution, as enshrined in Article 8. Gossai underscored that, given the foregoing, the provisions of Section 72 make it clear that the Executive is vested with a purely judicial function, which offends the separation of powers and contravenes the provisions of Article 122 A of the Constitution.
In a 32-page judgment, Justice Morris-Ramlall analysed the evidence the prosecution presented against Bisram, and held that the evidence disclosed by the prosecution did not meet the required evidentiary threshold.
“…The evidence is insufficient, or, in other words, it is not of the quality that a reasonable jury properly directed could safely convict on it. The state or extent of the evidence is a relevant factor that should have been taken into account by the DPP in arriving at her decisions.”

Directive lawful
However, the DPP has maintained that her directive for committal was lawful. During her arguments to the Court of Appeal on Wednesday, 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.
According to the DPP, the evidence of Chaman Chunilall, a witness, was admissible evidence, and the issue that arises is the issue of credibility, which is an issue for a jury to determine.
“This is a proper case for a committal, for it to go to trial in the High Court,” Ali-Hack said in her submissions to the appellate court.
Gossai also wants the court to award Bisram monetary damages for the period he was unlawfully incarcerated because of the actions of the DPP and the State.
This case is being heard by Chancellor of the Judiciary Justice Yonette Cummings-Edwards, and Justices of Appeal Rishi Persaud and Dawn Gregory. The panel will hear further arguments on February 3, 2021.
Bisram was charged with the October 2016 murder of Berbice carpenter and father of two, Faiyaz Narinedatt.
Media reports are that Narinedatt had gone to the yard, and was followed by Bisram, who reportedly came up behind him and made sexual advances. It was reported that Narinedatt rejected Bisram’s advances and slapped and chucked him, and Bisram then directed his friends to kill Narinedatt.
According to reports, several men had beaten Narinedatt and had dumped his body on the roadway at Number 70 Village Corentyne, Berbice. It was reported that they then drove over his body to make it appear like he was a victim of a vehicular accident.
Five other men: Orlando Dickie, Radesh Motie, Diodath Datt, Harri Paul Parsram, and Niran Yacoob, are currently awaiting trial at the High Court for Narinedatt’s murder. (G1)