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THE PRESIDENT IS NOT ABOVE THE LAW

Jul 16, 2009 Features / Columnists, Peeping Tom

It is NOT true that the President of Guyana is above the law. It is NOT true also that the President of Guyana, once sworn into office, cannot be removed other than for mental incapacity.
While the PPP may not have amended the Constitution of Guyana in respect to the powers of the Presidency to the extent that many would have wished, it is instructive to note that the Constitution has been amended to provide for the removal of the President for a violation of the Constitution or for gross misconduct.
Article 180 of the Constitution of Guyana provides that if a notice signed by half of the members of the National Assembly accuses the President of a violation of the Constitution of any gross misconduct, then a motion to this effect can be considered by the National Assembly and if supported by two-thirds of the elected members it may be declared passed.
In this instance, the Chancellor will appoint a tribunal to hear the allegations made against the President and, if the tribunal finds that the allegations have been substantiated, the National Assembly may by two-thirds majority resolve that the President’s conduct is incompatible with his continuance in office, upon which case the President shall cease to hold office.
There is, therefore, a constitutional mechanism for the President to be removed from office, one that affords the President due process under the law. This does not mean, however, that the President can be removed on the simple basis of an allegation that he locked someone out of a room.
I know of many instances where persons lock others completely out of their lives, and that can hardly be considered as gross misconduct.
The Constitution of Guyana also provides for immunity from the President having to be personally answerable to a court.
Article 182 of the Constitution of Guyana prohibits legal proceedings, whether criminal or civil, against the President in his personal capacity during his presidency or after. The said article extends this immunity to acts of commission by omission by the president in his personal capacity by similarly prohibiting the institution of criminal or civil charges against the President.
This immunity provision was one of the controversial provisions of the Burnham’s 1980 constitution. Interestingly, it was retained after the constitutional reform process that culminated in the 2000 reforms. While Burnham’s objective may have been to shield himself from criminal prosecution in the eventuality of his removal from office, the retention of the substance of this provision in the subsequent reform process, it is suggested, based on the comments of someone who was part of that reform process, had another objective.
The rationale for retention was to prevent the office of the presidency from being subject to constant legal challenges, which would detract from its significance and prestige.
It is a very logical rationale in that it would bring the entire State into disrepute if the Office of the President was constantly subjected to having to be answerable in court to all manner of petty challenges.
The Office of the President however could equally be brought into public embarrassment if there are serious charges of malpractices that are not investigated. In this regard, the Supreme Court of Sri Lanka has taken a most interesting position in interpreting the immunities of the President under their Constitution.
Article 182 of the Constitution of Guyana is similar to Article 35 of the Constitution of Sri Lanka. Article 35 of the Sri Lanka also provides immunity to that country from proceedings in respect to anything done either in his official or private capacity.
The Supreme Court of Sri Lanka last year in the Waters’ Edge case, and in what has been described by some news reports as a landmark ruling, argued that the constitutional immunity preventing actions against the President should not serve indefinitely as a shield for punishment for violations made while in office and should not be a motivating factor for Presidents – both present and future – to engage in corrupt practices or engage in abuses of power.

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