Construction of language in Article 182 pivotal to any court determination of presidential immunity

Dear Editor,

There can be no doubt that sooner or later the courts of Guyana will be called upon to determine the entitlement of former Presidents of Guyana to immunity from civil or criminal process. In my respectful submission, however, a finding for entitlement to immunity from curial scrutiny will, in the final analysis, depend on the construction assigned to the language of commitment employed in Article 182 of the Guyana Constitution, bearing in mind that legal language is ordinarily concerned with an enhanced awareness of words in order to sharpen the perception of social phenomena.

In this context, it is important to appreciate that, given their special status, constitutions are to be construed as always speaking so as to accommodate ever-changing social realities as exemplified in evolving higher standards of human values, thereby requiring a teleological or purposive construction. Consistently with the foregoing, R.M.B Antoine (Caribbean Community Law and Legal Systems 2nd ed., Routledge-Cavendish) perceived a constitution as a unique instrument which must be interpreted in the light of the ideals and principles which ground it. And the courts should give meaning to it by interpreting it in a broad and purposive manner in order to avoid “the austerity of tabulated legalism”.

In light of the foregoing, a clear distinction appears to be required between the performance of the functions of President in respect of which personal immunities (ratione personae) may be claimed during the term of office and even thereafter, on the one hand, and acts done or omitted to be done in a private capacity in respect of which immunities may be claimed only during the term of office. Consider in this context the provisions of subsection (1) and subsection (2).

In construing the provisions of Article 182 courts of competent jurisdiction will be required to determine whether subsection (1) addresses only official acts, to wit, acts designed to promote the public interest, and subsection (2) which accords immunity to acts done or omitted to be done in a private capacity. Assuming the rationality of this dichotomous arrangement, it is not without considerable political and juridical significance that official acts are not justiciable whether done or omitted to be done during a term of office or thereafter, as distinct from private acts which are only immune from curial scrutiny while the President is still in office, for example, the sale of state assets below market value to oneself, family or friends, but are justiciable after he leaves office.

While on the issue of immunities it may be useful to learn whether a President, sitting or not, may enjoy duty free purchases of materials for the construction of premises designed for sale on the private market rather than for personal use as a private residence.

Yours faithfully,

Professor Justice Duke Pollard

 

 

 

 

 

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