Even if he is not, President Jagdeo sure behaves like he is above the law

Jul 19, 2009 Letters

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Dear Editor,
Only because of the sensitive nature of the subject matter under review, I will, once again, make an exception to my hard-line position not to react or respond to ‘ghost writers’ and the writers of the Peeping Tom columns, and rebut the assertion by the Peeping Tom writer that “The President is not above the law,” (KN, July 16). Actually, if Guyana were a genuine democracy the current President should never be above the law, but thanks to the way Article 182 was written into the 1980 Burnham Constitution, he at times behaves as though he is. Now, let’s capture the gist of the Peeping Tom writer’s own words and decide among ourselves not only if the President is above the law but whether the writer is beneath primary school level of reading and comprehension. Article 182 of the Constitution of Guyana, the writer says, provides for immunity from the President having to be personally answerable to a court and prohibits legal proceedings – whether criminal or civil – against the President in his personal capacity during his presidency or after he demits office.

While even a primary school pupil can understand that clause clearly places the President above the law, the public’s peeve with that particular Article is that it’s protection clause was inserted into the 1980 Constitution at a time when the late Forbes Burnham was about to assume the executive presidency of the nation on the road to authoritarian rule, and he knew that many of the things he already did and probably expected to do could become the subject of criminal indictments and lawsuits, so he had this protection clause inserted.

When the late Dr. Cheddi Jagan, as Opposition Leader, railed against the clause, he had good reason to because he already saw and knew what Burnham had done and was worried that Burnham could then legally and literally get away with murder.
And that is why it is not only ironic, but deeply disturbing, today to see the President and other PPPites literally relishing the existence of such a clause.
So Guyanese are not buying the lame excuse offered by the Peeping Tom writer that the only reason the PPP retained the clause against indictments and lawsuits was to prevent the office of the presidency from being subject to constant legal challenges, which would detract from its significance and prestige. Balderdash! Rubbish! Lie!

President Bharrat Jagdeo has demonstrated by his very behaviour in office that not only is he a detraction to the high office he occupies, but his constant political and sometimes personal attacks reveal a conflicted man who has lots of down time on the job to afford to engage in gutter politics.
If he spent more quality time working towards providing real, workable solutions to Guyana ’s myriad complex problems – from the economy to racial unity to a meaningful role in CARICOM – he won’t have time to demean his office with his petty politicking.

In addition, the President has taken this above-the-law attitude down a few notches as he openly interferes in legal matters that should fall under the independent purview of the police and the DPP. And even though there is widespread knowledge of overnight rags-to-riches stories involving both prominent government officials (bribery) and private citizens (drug smuggling and money laundering), Government has not ‘sicced’ the police after the ‘big fishes’ nonchalantly swimming in the rivers of corruption, but has contented itself to go after Government’s ‘small fishes’ with polygraph tests that result in them losing their jobs. This brand of discrimination has not gone unnoticed by observers.

If a new Government is not elected in 2011 and the President does not seek a third term, he would have at least paved the way for his PPP successor to come in and build on a foundation of an emerging authoritarian regime that is fraught with discrimination, criminal corruption and cronyism.
In fact, were he not kept in check by a proactive, independent media – the proverbial thorn penetrating his proverbial political armour – and a sometimes agitated political opposition, he probably could have been farther down the ‘above-the-law, authoritarian road’ walking in the political footprints of Burnham, his de facto political mould.

Before I move to the second point, I want to briefly respond to the Peeping Tom writer’s citing of the Sri Lankan Constitution as a point of reference to defend the PPP’s retention of the clause that protects the President against lawsuits and indictments.
S/he never mentioned the political and historical context of that country’s need for such a constitutional clause versus the political and historical context of Guyana’s need for such a constitutional clause.
The writer also never stated whether Sri Lanka ever had a political leader who relied on the referenced constitutional protection clause to help run an authoritarian, above-the-law Government like Burnham did or as Jagdeo is seeking to do.

I would dearly love to see our High Court rule like the Supreme Court of Sri Lanka ‘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’, and if last year’s hearing into the case against the President in his capacity as Information Minister when he suspended CN Sharma’s TV licence is used as a gauge, then it is clear our court doesn’t even have the guts, let alone the voice!
Second, while Article 182 protects the President against lawsuits and indictments, it also helps Article 180 fortify his hold on power, because he can knowingly violate the Constitution he is sworn to uphold and still not be criminally indicted or removed from office by the Court.

I don’t know what the 1999 amended version of the Constitution now says, but Article 180 of the 1980 version said that the only way he can be removed, was either via a two-thirds vote in the National Assembly for what the members deemed gross misconduct, or via a decision by a majority of the board of medical doctors assigned to cater to the President’s general health.
Like Article 182, Burnham had those two clauses of Article 180 inserted into the 1980 Constitution, because he knew he had a two-thirds majority control of Parliament and that no PNC MP would ever dare move to have him removed from office for any kind of misconduct that violated the Constitution, and he also personally appointed the doctors on the President’s medical board, so there was no doctor who would have dared decide, without his approval or knowledge, that the President was mentally or physically unfit to continue serving.

Against this background, therefore, he was deemed President-for-Life, because he also had the rigging of elections under control.
Fast forward to the Jagdeo presidency and we will see that the PPP’s retention of the clause stating that the President can only be removed by way of a noticed being signed by half (at least 33) National Assembly members accusing the President of a gross misconduct in violation of the Constitution and supported by two-thirds of the National Assembly, is nothing but a farce.
Why? Because even though the PPP does not have a two-thirds parliamentary majority, it does have a majority or at least more than half the parliamentary seats, and like Burnham’s PNC MPs, all current PPP MPs are selected to serve based on the party list system, so their first loyalty is to the will of the President and the PPP.

Any deviation from the President’s wishes or the party line voting, including trying to oust the President even if he is violator of the Constitution, could result in their instant recall.
And regardless what political observers think of any deteriorating relationship between the President and the PPP leadership, the President and his party’s leadership will put differences aside to show a united front, so the last thing the PPP wants now is to have a public appearance of a split by way of having half of its MPs move to force the President to step down, even if he is in gross violation of the Constitution.
The only way the PPP leadership will openly turn against the President is if he publicly undermines the party.
But conventional wisdom says that right now, potential presidential candidates in the PPP are closely observing President Jagdeo’s performance to see what he is getting away with under the Constitution, (which may not be allowed in other genuine democracies), so that they may try to see what they, too, might be able to get away with under the Constitution if given the chance at the presidency, because if there is one thing the PPP is committed to it is to remain in office forever by any means necessary.
And using the unlimited powers of the presidency to abuse or circumvent the Constitution is not to be ruled out.
Emile Mervin

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