Marcus Bisram freed

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L-R: CCJ President Justice Adrian Saunders, Marcus Bisram, and DPP Shalimar Ali-Hack

US-based Guyanese Marcus Bisram, a murder accused, is now a free man following a ruling delivered today by the Caribbean Court of Justice (CCJ), Guyana’s court of final resort.

Bisram had filed an appeal challenging the powers vested in the Director of Public Prosecutions (DPP) pursuant to Section 72 of the Criminal Law (Procedure) Act.

This statute empowers the DPP to direct the committal of a murder accused for trial even though the Magistrate may have found there was no prima facie case to do so.

Bisram is challenging a ruling by the Guyana Court of Appeal which overturned a High Court ruling quashing an order made by the DPP for him to stand trial for the 2016 murder of Berbice carpenter Faiyaz Narinedatt, a father of two.

Bisram was charged with murder on the basis that he counselled and procured the death of Narinedatt. On two occasions, Magistrate Renita Singh, who conducted a Preliminary Inquiry (PI), found that there was not sufficient evidence to commit Bisram to stand trial for the capital offence, and accordingly, she discharged him.

The Magistrate, nevertheless, committed him to stand trial on the direction of the DPP, Shalimar Ali-Hack, SC. Bisram then filed judicial review proceedings, challenging the DPP’s directive. High Court Judge Simone Morris-Ramlall, having reviewed those proceedings, quashed the decisions of the DPP and the Magistrate.

Justice Morris-Ramlall ruled that the DPP acted unlawfully, as there was not sufficient evidence against Bisram to warrant his committal. The DPP then appealed Justice Morris-Ramlall’s decision to the Court of Appeal which set aside the Judge’s decision after finding that the DPP’s directive was lawful. Bisram was granted special leave to appeal the decision of the Appeal Court to the CCJ.

Unconstitutional

The power of the DPP to direct a committal was the focal point of arguments presented before the CCJ, with Bisram’s lawyer, Darshan Ramdhani, QC, urging the regional court to strike down as being unconstitutional Section 72 of the Criminal Law (Procedure) Act. Apart from arguing that the DPP’s directive to the Magistrate amounts to judicial interference which violates the doctrine of the separation of powers, he contended that her directive is also unlawful because it violates Article 122 A of the Constitution and infringes on his client’s right to a fair trial within a reasonable time guaranteed under144 (1) of the Constitution.

Prima facie case

The DPP, however, submitted that as a constitutional office holder, she was merely exercising a quasi-judicial function when she directed the Magistrate to commit Bisram. She argued: “That direction itself does not affect any judicial powers. I say this because the PI is only a stage in the trial. When the DPP directs the Magistrate to reopen and to commit, who hears those matters? It goes before a Judge and jury. The DPP has no control over what decision the Judge…or jury makes.”

According to Ali-Hack, the powers vested in her pursuant to Section 72 of the Criminal Law (Procedure) Act are just a matter of convenience to expedite the charge and do not in any way collide with Articles 122 A and 144 of the Constitution.

While noting that the evidence against Bisram established a prima facie case, the DPP said that any reasonable jury, if properly directed, might convict. The DPP argued that the Magistrate in Bisram’s case was assessing the credibility of the prosecution’s main witness, Chaman Chunilall. But this, she pointed out, is “strictly” a duty for the jury, noting that the Magistrate’s only task is to assess whether the evidence is sufficient and admissible.

Considering this, Ali-Hack submitted that Chunilall’s evidence is admissible, that her directive to the Magistrate was lawful, and that there is nothing unconstitutional about Section 72.

Very incongruous

But CCJ President Justice Adrian Saunders expressed that he found it very “incongruous” that some other authority other than the appellate court is vested with the power to direct a court.

He asked the DPP, “In this day and age, does it sit comfortably with you that an authority, even if that authority is not considered to be part of the Executive, but an authority which is not a Court of Appeal, is not a part of the core Judiciary, can actually direct a court as to how it must dispose of a matter before that court… doesn’t that strike you as being incongruous?”

“Whether the DPP is or is not a member of the Executive, to me, it does not detract from the fact whether a court ought not to be directed by some other authority other than a Court of Appeal; only a Court of Appeal can direct a court. It is very incongruous if someone is invested with a power to direct a court,” he added.

The DPP agreed with Justice Saunders’s point that Article 122 A is intended to secure the court’s financial and administrative independence, and, therefore, ensures that “no one can direct a court how it must decide cases”.

For his part, CCJ Justice Jacob Witt described the provisions in Section 72 of the Criminal Law (Procedure) Act as a “really remarkable concept”. He said that he does not know of any legal system in which the DPP is empowered to direct a Magistrate.

“I also wonder, if that is the case, why, in the first place, do we have the committal procedure? Why is it necessary that the Magistrate should commit, because if he doesn’t, then you [DPP] can tell them to do it anyway,” he said to the DPP.

Meanwhile, CCJ Justice Denys Barrow said the statute is unfortunately framed in a way “where it seems as though the DPP is telling the Magistrate what to do”.

He said that the Belize law regarding indictable matters allows the DPP to ask the Magistrate to send the depositions to him/her, or a High Court Judge and the Judge would then examine the depositions upon the DPP’s request to commit an accused.
Justice Barrow opined that the Guyanese legislation did not intend for the DPP to be a Judge over, or to interfere with, the judicial functions of the Magistrate, but rather to take the process to another tribunal for determination.

Modify law

In the end, the CCJ said it would engage the DPP and Bisram’s lawyer on a possible modification of Section 72 of the Criminal Law (Procedure) Act, which would allow the DPP to ask a High Court Judge to review the depositions from a PI and exercise his/her independent discretion on whether to direct a committal or not.

With the law revised this way, CCJ Judge Peter Jamadar noted that the PI process will “stay within the separation of powers, it stays within the [Judiciary], preserves the independence of the Judiciary, and in terms of the human rights…conforms to the right to a fair hearing by an independent and impartial court.”

Extradited

Bisram was extradited from the United States to Guyana in 2019 to face the murder charge. There was an extended fight in the US courts to block his extradition.

He was eventually charged and remanded to prison for the murder of Narinedatt of Number 72 Village Corentyne, Berbice.

It is alleged that on the day of the killing, Bisram had a party at his home, which Narinedatt and others attended. Media reports are that Narinedatt went to the yard and was followed by Bisram, who reportedly began “feeling him up.”

It was reported that Narinedatt slapped and chucked Bisram, who allegedly directed his friends to kill him. According to reports, several men had beaten the carpenter and dumped his body on the Number 70 Village Corentyne, Berbice road.

It was reported that they then drove over his body at Number 70 Village Corentyne, Berbice, to make it appear like 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 in Berbice for Narinedatt’s murder.