Dear Editor,
Rajendra Bisessar’s excellent letter titled ‘What is the extent of the President’s immunity under the constitution?’ (SN, March 17) delves into the eternal debate respecting the personal immunity of the President under the constitution. Like Bisessar, I have decided to research and interpret article 182 of the constitution.
I am no lawyer but Bisessar’s suggestion that presidential immunity under article 182 is temporal appears to be the correct interpretation. Article 182 (1) states (italics mine): “Subject to the provisions of article 180, the holder of the office of President shall not be personally answerable to any court for the performance of the functions of his office or for any act done in the performance of those functions and no proceedings, whether criminal or civil, shall be instituted against him in his personal capacity in respect thereof either during his term of office or thereafter.
“182 (2) Whilst any person holds or performs the functions of the office of President no criminal proceedings shall be instituted or continued against him in respect of anything done or omitted to be done by him in his private capacity and no civil proceedings shall be instituted or continued in respect of which relief is claimed against him for anything done or omitted to be done in his private capacity.
“182 (3) Where provision is made by law limiting the time within which proceedings of any description may be brought against any person, the period during which any person holds or performs the functions of the office of President shall not be taken into account in calculating any period of time prescribed by that law for bringing any such proceedings as are mentioned in paragraph (2) against him.”
Firstly, it is evident that the President can be named and sued in his official and public capacity as executive president. Secondly, the presidency is an organ of state and all organs of state can be sued by citizens. Thirdly, 182(1) applies strictly to the person holding the presidency, which means that lawsuits can be brought against and can be personally answered by other staff of the Office of the President including advisors. Fourthly, the president can be compelled to answer to any non-court bodies based on article 182. Fifthly, there is a monumental distinction between 182(1) and 182(2). Article 182(1) limits personal presidential immunity to anything done in performing the office of the presidency. Article 182(2) does not limit personal immunity to acts done in performance of the presidency. It grants absolute personal immunity but only for the duration of the presidency. It is a suspension clause.
After the term of presidency is over, article 182(2) allows citizens and corporate entities to sue or for public bodies to prosecute the ex-president for private acts committed while he served as president.
Sixthly, the ‘thereafter’ clause Bisessar highlights is present in 182(1) but is palpably missing in 182(2). This was a premeditated removal by the framers of the constitution to deliberately expose the president to lawsuits and prosecution for private acts after his term as president is finished. The elimination of ‘thereafter’ from 182(2) meant that immunity under 182(2) ceases after the president demits office. Seventh, 182(3) explicitly suspends the statute of limitations to enable the public to bring an action or prosecution against the president in his private capacity under 182(2). Article 182(3) is unequivocal proof that 182(2) was intended to expose the president to prosecution and lawsuits for private acts.
The police, DPP, Attorney General and private citizens and companies can sue or launch a prosecution against the president in his private capacity after he leaves office, for private acts committed during his presidency. While some nefarious types may connivingly argue that every act committed by the president during his term is a function of his office, it is clear that this is an utterly bogus machination. The unerring truth is that there are certain acts which are purely private and which demonstrably fall outside of the office of the presidency. These are the acts for and on which the Guyanese public can sue and prosecute the president.
Yours faithfully,
M Maxwell
