I agree with Christopher Ram (‘The President hides under the apron of the constitution’s immunity clause’ SN, March 15) that the President of Guyana may be operating under the wrong assumption that the immunity Article 182 in the constitution grants absolute and unqualified immunity. This probably prompted Rajendra Bissessar to revisit the said article in a letter (SN, March 17) posing a number of questions about the extent of the President’s immunity.
The immunity clause differentiates between acts done in the performance of the functions of his office (paragraph (1)) and “anything done or omitted to be done by him in his private capacity” (paragraph (2)).
As I understand it, under paragraph (1), the President does not personally answer to any court, ie, in person, for official acts, nor does the paragraph permit proceedings whether criminal or civil to be ever instituted “against him in his personal capacity” for acts done in the performance of official functions. This should be clear. This paragraph deals exclusively with performance of “functions of his office.”
If the President, in the execution of his functions or the performance of his duties commits an act that is unlawful, for example unlawfully ordering the demolition of someone’s property, or acts ultra vires the powers conferred on him by the constitution, the State Liability Act, 1984 provides that such proceedings shall be brought against the Attorney General. In my view, the immunity is limited to the President, not to the unlawful or ultra vires act.
In relation to any criminal offence committed by the President there appear to be conflicting articles in the constitution. Article 187 gives the Director of Public Prosecutions the power to institute proceedings against any person which includes the president as an individual as well as the President who is an organ of the state.
If the framers of the constitution wished to exclude Article 182 from the jurisdiction of the court it should have so stated.
As far as proceedings for slander are concerned, paragraph (2) is helpful because it deals with acts done in a private capacity and sets out the extent of the presidential immunity. Paragraph (2) clearly prohibits the institution and continuation of civil proceedings “in respect of which relief is claimed against him” for anything done or omitted to be done in his “private capacity.” A speech at a party gathering for example, is not part of any official presidential function and is not protected by paragraph (1).
If a speech of the President contains words that are slanderous a person has two options. Proceedings for slander can lawfully be mounted so long as “relief is not claimed against him.” It appears therefore that if proceedings for slander can be constructed not against him in his personal capacity but against some other lawfully recognised entity, eg, the political party on whose platform he was speaking, the courts would have to entertain the action.
The challenge here is for the lawyers to construct the pleadings and seek relief not against the President but against others for slander committed by him as their authorised agent and representative.
The second is linked to paragraph 3 of Article 182. That paragraph stays any proceedings against the President in respect of proceedings under paragraph 2 but the period of the presidency does not count for purposes of the limitation period to bring an action. The clock stops and only resumes after the person demits office.
Therefore the person slandered may wait out the period and bring the action within the normal limitation period.
So to conclude, the so-called immunity in Article 182 is definitely not as absolute as many believe and any properly constituted court in any properly functioning democratic system ought to be able to entertain proceedings against the holder of the office of the President.
It is time to seriously challenge this Article 182 before a panel of competent and impartial judges.