In keeping with the ruling of the Caribbean Court of Justice (CCJ) earlier this year repealing the committal powers of the Director of Public Prosecutions (DPP), Attorney General Anil Nandlall SC on Monday tabled a bill in the National Assembly to vest that power in a High Court judge.
Back in March, the Trinidad-based court of last resort for Guyana in a unanimous ruling annulled Section 72 of the Criminal Law (Procedure) Act, by which the DPP was empowered to order the committal of a murder accused for trial, even though a magistrate would have found no prima facie evidence to so do.
The apex court found that the provision contravened Guyana’s Constitution and struck it down.
The case adjudicated by the Court stemmed from an appeal by former murder accused Marcus Brian Bisram, who had been discharged of murder following the conclusion of a preliminary inquiry (PI).
He was soon after re-arrested when DPP Shalimar Ali-Hack invoked her powers under Section 72 and ordered the presiding magistrate to commit Bisram to face trial before a judge and jury.
He challenged the DPP’s directive, arguing that Section 72 was unconstitutional in view of Article 122 A (1) of the Consti-tution by which it is trumped, because of its supremacy over other laws.
Article 122 A provides, “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.”
The CCJ had said in its ruling, “A law which renders the magistrate’s professional decision-making subject to the dictates of another official cuts straight through Article 122A [of the Constitution] and must be declared void to the extent of its inconsistency with that article.”
Essentially affirming the magistrate’s finding, the CCJ declared that unless the DPP was able to present “fresh evidence” against him, Bisram could not be prosecuted for the murder charge he was facing.
It was in compliance with this ruling that Nandlall who is also Minister of Legal Affairs presented the Criminal Law (Procedure) (Amendment) Bill No. 21 of 2022 which had its first reading in the House on Monday.
The bill’s explanatory memorandum states that it amends Section 72 of the Principal Act so that the repugnance between the Constitution and that section is removed; by now requiring the DPP to make an application to a judge of the High Court for a warrant to arrest and commit a murder accused discharged by a magistrate, where the DPP is of the view that, on a review of the evidence placed before the magistrate, the discharged person ought to have been committed to trial.
The explanatory memorandum makes it clear that “the judge may only grant that application if he or she is also of the view, from the evidence as was placed before the magistrate who discharged the accused person, that such a course of action is required.”
It then provides that both the DPP and the discharged person shall have the right to appeal to the Court of Appeal.
Subsection (3) of the amendments to Section 72 states that every application made by the DPP under subsection (2) has to be made within three calendar months of the discharge of the accused person.
Subsection (4) provides that where a judge grants an application for the arrest and committal for trial of a discharged person under subsection (2), the judge shall then issue the warrant for the arrest and committal of that person who shall then be kept until otherwise discharged in the due course of law, or granted bail.
Subsection (5) then goes on to state that “every person proceeded against under subsection (4), shall be further prosecuted in the like manner as if that person had been committed for trial by the magistrate by whom the person was discharged.”
Meanwhile, subsection (6) provides that where the DPP or the discharged person is aggrieved by a decision of the judge, an appeal of that decision shall lie to the Court of Appeal.
Bisram’s legal team had vigorously argued that that Section 72 interfered with the independence of the judiciary as provided for in Article 122 and had submitted that the Section was on a “collision course” with the Constitution and for that reason ought to be modified or repealed.
