Article 182 that attends to the ‘Immunities of President’ can be amended and even excised from the constitution according to Article 164, ‘Procedure for altering this Constitution.’ Article 171(1) ‘Introduction of Bills, etc’ allows for “…any member of the Assembly [to] introduce any Bill….” I am on record saying Article 182 should be tested in court based on society’s concern and what yours truly considers its misapplication and abuse of authority by the office holder.
The spirit and intent of presidential immunity could never have been to allow the president free rein to break the laws, misuse the nation’s resources and transgress the citizens’ rights when the constitution he or she has sworn to uphold outlines how the nation’s affairs must be managed and its citizens treated. The immunity clause is intended to protect the president from being distracted by frivolous lawsuits and any mistake genuinely made in the discharge of his duty.
As we continue the conversation on constitutional reform with particular reference to immunity and governance around the presidency, mention is made to a judicial ruling in the USA. That country’s Supreme Court has ruled that the president “has absolute immunity from civil lawsuits seeking damages for presidential actions.”
The online free legal dictionary, ‘President of the United States’ goes on to say, “The Court stated that it had never suggested that the president or any other public official has an immunity that ‘extends beyond the scope of any action taken in an official capacity.’ The Court has based its immunity doctrine on a functional approach, extending immunity only to ‘acts in performance of particular functions of his office.’”
That the presidency in Guyana has been held by persons with flawed personalities is not the fault of the immunity clause. It is about the quality of persons that the society embraces as its leaders. This is more a reflection of the decay that is taking place in the society that persons are not prepared to confront head on.
As the conversation about immunity is under focus, attention should also be placed on Article 172 ‘Privileges, etc., of members of the National Assembly,’ one of which is Article 172 (3) that states, “For the duration of any session, members of the Assembly shall enjoy freedom from arrest for any civil debt.” To the rogue parliamentarian what this means is that she or he can incur debt and refuse to honour it under the protection of this clause, when in fact if a debt is owed one is expected to honour same and make arrangements for payment.
There is an example in this society where a member of parliament (MP) who enjoys the favours of the PPP administration was taken to court by a state company for money owed. This MP sought protection under Article 172 (3) and was subsequently made a minister. Under the presidency of Forbes Burnham, Desmond Hoyte and Cheddi Jagan this person would have never had their support and been appointed to a ministerial position. These men would not have allowed their names or administration to be tarnished with this unethical behaviour. Bharrat Jagdeo and Donald Ramotar have proven to be different.
The concern is that there continues to be an interpretation that the roles and activities of the presidency include abuse of the citizenry and illegal activities. One of the hazards of democracy is that anyone, once he or she satisfies constitutional requirements can run for and be elected to office. But it is the primary responsibility of citizens to either elect or reject that person, and if so elected that person should be held accountable to the expectations of the society and its laws.
The absence of vigilance and militancy are contributing factors to many of the ills this society faces today. For if there are discussions on the merit and demerit of the spirit, intent and articles in the constitution, the Guyana Constitution is not singular in many regards as cross references with other societies and their constitutions have shown. Where this society is singular is in its dancing around and ignoring the elephant in the room, which is the failure to hold elected and public officials accountable to the instrument they have to sworn to uphold to the letter, and in its spirit and intent.
It is reiterated that a constitution is dead at its heart unless activated by the people. Even if the calls for reform are realised, given the apathy of the enabling voices in civil society to the lawlessness committed by some politicians post-1992, the constitution will be blamed and not the actors in the continued process of not wanting to take responsibility for holding persons accountable.