Guyana amends law in line with CCJ ruling to guarantee court’s independence

Last Updated on Monday, 24 April 2023, 23:54 by Denis Chabrol

Guyana’s National Assembly on Monday amended its Criminal Law Offences Act to scrap the powers of the Director of Public Prosecutions (DPP) to direct a magistrate to commit a murder accused to stand trial by a judge and jury even if a preliminary inquiry finds that there is insufficient evidence to do so.

The amendment now provides for the DPP to apply to a High Court judge to have an arrest warrant issued for the accused and committed to stand trial.

Attorney General Anil Nandlall said that although the amendment to Section 72 of the Criminal Law Offences Act was as a result of a Caribbean Court of Justice (CCJ) ruling in favour of then murder accused, Marcus Bisram, he disagreed with part of the suggested approach by Guyana’s apex court. He said if an accused person is charged with murder, appears before a magistrate and rightly or wrongly is discharged by that magistrate, he is free once again and presumed innocent.

“I believe it will be repugnant to go before a judge ex parte and reinstitute charge and get an arrest warrant issued  against that person and commit him to stand trial before judge and jury ex parte meaning without him being heard.

I have problems with that though the CCJ is saying that it should be done. Here I believe that the CCJ in their recommendation – and I say  with the greatest respect,  that they themselves might be guilty of that which they are attempting to regard as preserving and protecting and that is the protection of the law and the rights of accused persons,” he told the National Assembly.

The Attorney General said the judge should decide whether to hear one or both sides.

In its March 15, 2022 ruling the CCJ had effectively amended the law until the National Assembly had done so to allow the DPP to apply, without regard to the suspect’s position, to the High Court for the accused to be committed to stand a High Court trial.

Mr Nandlall said the amendment gives the judge the option to hear the matter based on the DPP’s evidence and if the suspect is not committed, the DPP  will have the right to appeal to the Guyana Court of Appeal.

In challenging the constitutionality of the DPP to instruct the magistrate to commit him to face a High Court trial based on an authenticated copy of the deposition taken at the Preliminary Inquiry and every other statement, document, or thing in relation to those proceedings, he convinced the CCJ to find that the now amended section 72 of the Criminal Law Offences Act empowers a non-judicial agency to direct one component of the judiciary on the outcome of a case before the judicial organ, and so such a power undermines then independence of the judiciary, abrogates the doctrine of separation of powers  and is in violation of  Guyana’s constitution that guarantees independence and the protection of the law guaranteed to every citizen.

Importantly, Monday’s amendment allows the DPP  three months within which to ask the High Court to commit a murder suspect to a jury trial. “The DPP can’t wait until an undue period of time elapses, a man gets his freedom as a result of a magistrate court determination and then after a protracted delay go and make this application to the judge.

Mr Nandlall said the amendments were the product of consultations with the DPP, Guyana Bar Association, Berbice Bar Association and the Police Legal Adviser. He said that also similar laws in Jamaica, Trinidad and Tobago, St Vincent and the Grenadines, Barbados and Grenada were examined.

The Attorney General said other sections of the Criminal Law Offences Act were also amended to bring them in line with the CCJ’s ruling.

Leader of the Alliance For Change (AFC), Attorney-at-Law Khemraj Ramjattan concurred “completely” with Mr Ramjattan.