The Constitution and legal action against the President

Mar 17, 2011 Letters

Dear Editor,
There is a well established acceptance that the legal position is that the President cannot be taken to court during or after his term in office for criminal or civil actions whether in his official or private capacity. It is my position that this may not necessarily be so and I am throwing my opinion into the public for debate.
Section 182 (1) states that the President shall not be personally answerable to any court for acts done in the performance of official functions whether criminal or civil either during and I emphasise “thereafter”.
Subsection (2) deals with criminal or civil “proceedings”: It states that such proceedings cannot be brought against the President for such acts that are done in his private capacity and I emphasise “whilst any person holds or performs the functions of the office of the President”.
This subsection does not state “thereafter”. Can we interpret this to be that any proceedings have to be put on hold, but can be initiated after? Subsection (1) says “not answerable” Subsection (2) says “no “criminal proceedings” and no “civil proceedings” whilst in office.
I wondered why we have subsection (3) if it is not legal to bring proceedings at all that is after one ceases to function as President. Subsection (3) deals with statute of limitations and states that the period of official function as President must not be counted with regards statutory limits.
Does this mean that one can bring proceedings against the ex President for crimes or civil matters he may have committed in his private capacity while he was President and the statutory limit would commence after one demits office?
Does that mean if there is a breach of promise before he became President that the period of his presidency would not count and that one can proceed against him after he demits office? Does this mean that if there has to be a division of property while he is President that proceedings cannot commence until he demits office and that the period of his presidency would not be included in the calculation of the statutory limit?
Am I to understand that sub-section (2) deals with the President personally but that one can move against the state for acts committed by the President? If the President were to give an instruction as President to demolish a house and that decision is carried out then can we sue the government, through the Attorney General?
Below are the sections.
182 (1) 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 office or for any act done in the performance of those functions and no proceedings, whether criminal or civil, shall be instituted against him in his personal capacity in respect thereof either during his term of office or thereafter.
(2) Whilst any person holds or performs the functions of the office of President no criminal proceedings shall be instituted or continued against him in respect of anything done or omitted to be done by him in his private capacity and no civil proceedings shall be instituted or continued in respect of which relief is claimed against him for anything done or omitted to be done in his private capacity.
(3) 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 functions of the office of 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) against him.
Rajendra Bisessar

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