I repeat, the President is not above the law

Jul 23, 2009 Features / Columnists, Peeping Tom

I find it amazing that someone who admits that he has not read the post-2000 revisions that were made to the Constitution of Guyana, could have claimed, with some degree of alacrity and assertiveness that the President remains above the law.
Unless one studies, carefully, the amendments that were made to the powers of the presidency, one can hardly discuss with any degree of assuredness whether there has been a shift in the emphasis and whether the President remains above the law.

Not having studied the reforms, one Emile Mervin finds himself, having adopted one position before and now finding himself in a haze, having to state quite absurdly that while the President may not be above the law, he behaves as if he is above the law.
Well, if the President is NOT above the law and behaves as if he is above the law, there should be little problem in correcting this deviancy because the Constitution provides for the President to be subject to the law, which was what my original column was about.

Instead of familiarizing himself with the subject, Emile Mervin, a known blogger, has critiqued a column of the Peeper with the usual introduction about not usually replying to ghost columnists.
It strikes me as perverse that someone would find the concept of a faceless columnist so repulsive as not to usually reply to the writings of that columnist, yet would read the articles penned by the columnist. How come it is so repulsive to reply to something that one makes it a duty to read each day?
The problem with Emile Mervin goes beyond this contradiction. He has a tendency to present conjecture as facts and to present what to him are facts without the proof. He did this in his most recent response about the President and the law, which was a response to a column that I did indicating that the President was NOT above the law.

For clarity, certain things need to be repeated. In my original article I mentioned that while the reforms carried out under the PPP, but not necessarily PPP reforms, since the Reform Process was a multi-party, multi-stakeholder exercise, made amendments to the powers of the Presidency in a number of areas, it is conceded that the reforms did not go as far as many expected.
In relation to the immunities of the presidency, there was a shift in emphasis from unhindered immunity to one in which the immunity, in my estimation, is only in respect to the President not being personally answerable to a Court. This was significant departure in that, still in my estimation, the actions of the President can be challenged in a Court but he is not personally answerable.

I believe that an initial preliminary ruling by the Courts of Guyana has been vindicated by interpretation.
In interpreting provisions of a Constitution or law, the Courts always have the option of going beyond the literal interpretation of what a statute says and examine what was the intention of the lawmakers. It is in this context that this column noted a defence of the immunity of the President offered by someone who was part of the reform process and who explained why those immunities were retained in the manner in which they were retained.

I do not treat that explanation as gospel but I respect its forcefulness which is reinforced by the absence, so far, of any substituting explanations, as to why the immunities (in their amended form) were retained.
My column also explained that despite the immunities, there is a development of interest in case law concerning presidential immunities. Reference was made to last year’s Waters’ Edge case in Sri Lanka whose constitutional provisions relating to immunities of the Chief Executive are similar to Guyana’s. The fact remains, however, that there has been but only one challenge so far to acts done by the President, and Mervin.

My column also noted the amendments that have taken place in relation to the removal of the President. It was explained that the President can now be removed for violations of the Constitution or for gross misconduct, after a process that begins with the filing of a complaint to the National Assembly and ends with the report of a judicial tribunal which has to be presented to the said National Assembly.
All of these reinforce the position that the President, is NOT above the law. Those who therefore feel that the President is acting beyond the law are free to seek redress in the Courts or through the National Assembly.

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