The 19 fraud charges over the sale of state lands in the ‘Pradoville 2’ Housing Scheme instituted against Dr. Irfaan Ali before he became president are currently pending as the Magistrate’s court is awaiting a decision from the Guyana Court of Appeal on the way forward.
After the charges were instituted against Ali in 2018—then former People’s Progressive Party/Civic (PPP/C) Housing Minister, he moved to the High Court against the Commissioner of Police, the Director of Public Prosecutions (DPP), the Chief Magistrate, and Detective Corporal Munilall Persaud to seek a declaration that there was no statutory or common law duty to obtain a valuation prior to the sale of property.
The High Court had, however, ruled against him and he subsequently appealed to the Court of Appeal.
In the latter part of 2018, Ali was arraigned on 19 conspiracy to defraud charges stemming from the sale of land in the Pradoville 2, East Coast of Demerara Housing Scheme, allegedly far below value.
When the matter was called before Chief Magistrate Ann McLennan at the Georgetown Magistrates’ Court on Monday, Ali’s attorney Devindra Kissoon made an application for the charges to be dismissed given that a sitting president is immune from suit as provided for by Article 182 of the Constitution.
Prosecutor Patrice Henry for the Special Organised Crime Unit (SOCU) which had instituted the charges, however, objected to Kissoon’s application on grounds that the provision requires an interpretation of the constitution for which the Magistrate’s Court has no jurisdiction and further that the appellate court has active conduct of the case, while advancing that it is there that Kissoon’s submission regarding any dismissal should be canvassed.
Henry in an invited comment to the newspaper yesterday pointed out that the issue of immunity applies for the period “while [a president is] in office,” reasoning that such a person could not be protected from suit for charges brought before assuming the office of Head-of-State.
According to Henry, the charges levelled against Ali can properly be adjourned until his term is over since “there is no restriction on the time line.” On this point the lawyer pointed out that Suriname’s former President was convicted for crimes committed prior to him holding office.
When contacted, Kissoon said that his application for dismissal was on the basis that even if true, there needs to be substantiated that there was unlawful conduct on Ali’s part before any conspiracy-to-defraud charge can be successfully prosecuted.
He continued to advance as he had done before also, that as a matter of law, there is no requirement for a valuation to first be done before a sale, nor does there exist any law which stipulates what the valuation ought to be or how it should be calculated.
The charges against Ali detail offences alleged to have occurred between the period of September 2010 and March, 2015, when he was Housing Minister, and involve house lot allocations to six former Cabinet members—former president Bharrat Jagdeo, Cabinet Secretary Dr Roger Luncheon and Ministers Priya Manickchand, Dr Jennifer Westford, Robert Persaud and Clement Rohee—along with other persons with connections to the then PPP/C government. The lots were sold at below market rates.
Ali has always argued through his attorney that not only do the 19 charges levelled against him not amount to an offence known to law, but that even if proven, “are impossible to yield a conviction.”
Article 182 (1) provides, “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 or her office or for any act done in the performance of those functions and no proceedings, whether criminal or civil, shall be instituted against him or her in his or her personal capacity in respect thereof either during his or her term of office or thereafter.”
Meanwhile, subsections (2) states, “Whilst any person holds or performs the functions of the office of President no criminal proceedings shall be instituted or continued against him or her in respect of anything done or omitted to be done by him or her in his or her private capacity and no civil proceedings shall be instituted or continued in respect of which relief is claimed against him or her or anything done or omitted to be done in his or her private capacity.”
Subsection (3) then concludes by saying, “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 function of the office of the 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).”
With a stay of the Magistrates Court proceedings still in operation, the Chief Magistrate has since adjourned the matter to October 26th to await the guidance of the Court of Appeal.
Having completed hearing the case, the appellate court had earlier this year indicated that notices would be sent informing when it would rule. This is yet to be done.
On Sunday, Dr. Ali was sworn in as President after his party was declared winners of the March 2nd, 2020 polls.
Ali had wanted the court to also issue an order quashing the DPP’s decision to institute the charges in the first place, which he contended was irrational, unlawful, void and of no effect.
However, High Court Judge Franklyn Holder had ruled that Ali did not have a constitutional right to not be charged, contrary to what he contended in the challenge.
