Article granting presidential immunity should be tested in court

Dear Editor,

The best written blueprint in the hands of those who don’t understand their role, care about the document’s intent and the people/community it sets out to serve, presents the opportunity to decry or abuse it. Conversely, the worst blueprint in the hands of those who understand their role, care about the document’s intent and the people/community it sets out to serve will find accommodation to operate in the people’s best interest. From now until thy kingdom come, the Guyana Constitution, like constitutions around the world, will be subject to criticisms and arguments for amendments.

Some continue to demonise what is called the Burnham Constitution, in as much as significant reform via national consultation and input from every sector in society, including the major political parties (PNC, PPP, WPA, TUF), Guyana Trades Union Congress, was done in the 1990s. In the USA there is a school of thought the popular vote should replace the Electoral College as key to effective and representative government. The Jamaican government has promised constitutional reform to replace the Queen as Head of State as some argue for the status quo. In Britain some argue for a written constitution as some prefer the status quo.

These illustrations are made to make the point that in an imperfect world, these are normal occurrences and battles/fault lines will always be present, and amendments made where necessary. What distinguishes us from others however is our unique preoccupation of spinning in the mud and finding reason(s) not to hold responsible persons accountable, or not to move this country forward. This dangerous misrepresentation of the Constitution, albeit its imperfection, as the reason for the stagnation, violations, divisions and unaccountability when no one such power or authority is granted anyone is doing a disservice to this country and hindering its people’s development.

The much vaunted Article 182 that grants the President protection from criminal and civil actions conducted in “…the performance of the function of his office or for any act done in the performance of these functions…” can never, never, translate to immunity to transgress the rule of law which enshrines the rights of citizens, duty of public officials, management of our natural and capital resources, and holding public officials accountable in pursuit of same. Having taken the oath to office to uphold the constitution, Article 182 cannot then grant him immunity from same. It is a puerile argument, initially used in the political hustling, and now being used by persons the society expects better from. This article should be tested in the Courts.

In the meantime, from a reasonable standpoint Article 182 is better understood through Article 111 which says “…the President shall act in accordance with his own deliberate judgment, except in cases where, by this Constitution or by any other law, he is required to act in accordance with the advice or on the recommendation of any person or authority.” With recognition given to Article 111, Article 182 therefore seeks to give the president needed protection from frivolous lawsuits that may arise from governing or a mistake from some well-intended act on the people’s behalf. It also assumes the holder of this office will have a functioning I.Q. The framers would never envisage this office could be held by ruthless and reckless persons but buttressed this expectation by putting mechanisms in place where the people can stand up and demand what’s rightly theirs.

Here is some evidence to reinforce the point:-A constitution that enshrines the people’s involvement in decision-making (Article 13); protects Fundamental Rights and Freedoms of the Individual (Title 1); reinforces the right to self-determination (political, social, economic and cultural) throughout; sets time frame and operational guidelines for the President and Leader of the Opposition; grants public servants recourse to address grievances (Article 215A); stipulates  the Service and Rights Commissions (Title 7); protects trade unions (Articles 23, 38, 147, 149C); gives Parliament the power to allow “regional democratic councils to raise their own revenues and dispose of them for the benefit and welfare of their areas” (Article 76); subjects the President’s conduct and violations to the National Assembly for review and pronouncement (Article 180); demands an independent judiciary (Article 122A); protects children, youth, women, and seniors; secures continual Constitution evaluation (Article 119A); makes parliament the nation’s supreme organ of democratic power (Article 50); and subjects the president, elected and public officials to uphold these principles (via the Oath of Office), is not to be discarded and treated with disdain.

We must make the Constitution work for us. And where there is contention let us move away from the abstract arguments and address the specific article(s) responsible for our concerns that would create reasoned discussions. Let us also not forget the Constitution allows for amendment(s) but this approach has to be based on evaluation, which includes testing it.

Yours faithfully,
Lincoln Lewis

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