THE PRESIDENT IS NO LONGER ABOVE THE LAW

Apr 25, 2011 Features / Columnists, Peeping Tom

---

The immunities enjoyed by the President of Guyana under Article 182 of the Constitution of Guyana do not allow the holder of that office to violate the constitution of Guyana. Such violations are subject to judicial review in which case the Courts may overturn the violation and offer other remedies.
If there is any evidence that there has been a violation of the Constitution by the Head of State, there are two recourses. The first is to approach the courts for judicial review, including reviews all the way of the Caribbean Court of Justice.
The President is not personally answerable to the court but the State in whose names he exercises authority is. There is therefore no absence of remedies. The Courts are not likely to countenance any such violations, and have the power to rule against such acts.
The second resource is to the National Assembly. If it is alleged that the President at anytime has breached the constitution, then the holder of that office can be censured by the National Assembly. The Constitution of Guyana is quite explicit on this point. Article 94 of the Constitution of Guyana states: “The President of Guyana may be removed from office if he commits any violation of this Constitution or any gross misconduct. The procedure for removing him is prescribed by article 180.”
Before examining the procedures set out under article 180, the clear intention of article 94 of the constitution is to make the President answerable to Parliament for either gross misconduct or for a violation of the constitution.
Under the 1980 constitution, the President of Guyana had the option of dissolving Parliament before any inquiry by Parliament could have been initiated. These controversial powers were removed during the constitutional reform process which took place after the 1997 elections.
The present provisions reinforce the right of the National Assembly to initiate proceedings to examine allegations that a President may have violated the constitution.
Once a motion is signed by half of the elected members of the National Assembly and once that motion proposes that a tribunal should be established to investigate these allegations, the motion is not required to be debated upon, but instead has to be voted upon.
If two thirds of the elected members of the National Assembly vote in support of the motion, then the motion is considered passed and creates an obligation on the part of the Chancellor to establish a tribunal to investigate the allegations.
If the tribunal finds the allegations to be substantiated, then a 2/3 vote of the elected members of the National Assembly may resolve that the President is guilty of such violations. Once this occurs, the President shall cease to hold office three days after the passage of the resolution.
It must be noted that the pronouncement of guilt is not made by the tribunal but by the National Assembly. The tribunal merely determines whether the allegations are substantiated.
The constitution therefore provides for the President to be subject to the discipline of the constitution as pronounced upon by the National Assembly.
There is no immunity from this and therefore the President is not above the law and not above the Constitution. This was ensured in the constitutional reform process which was initiated after the 1997 elections.
The constitution does however provide the President with certain immunities. Article 182 of the Constitution prohibits the President from being personally answerable to any court of law for any act which he may have done or omitted to have done while in office. This again is different from immunizing the President from any act while in office or out of office.
While in office, the President cannot be brought before the courts, in his personal capacity either civilly or criminally both for official and private actions. While he is in office, he is also immune to challenge for his private actions.
These provisions are consistent with not opening up the Presidency to every Tom, Dick and Harry attempting to drag a sitting President before the courts and therefore bringing the office into disrespect.
But while the President is not personally answerable for his official and private acts while in office, this does not mean that the official actions of the President are beyond challenge.
They are not. The President may not be personally answerable but the State is and there is at least one case presently before the courts in which this proposition is being tested.
In terms of his private actions while in office, the President is immune from being sued while in office but the constitution does not specify that the holder’s private actions is immunized from challenge after leaving office.
This distinction reveals the intention of the revised immunities granted under Article 182. These immunities were not intended to absolutely shield the President from prosecution and place the holder above the law as is so often misrepresented, but merely to avoid the Presidency being brought into disrepute by persons constantly filing actions against a sitting President.
The immunities however cannot be used to circumvent or prohibit censure from the National Assembly. The article granting immunities is subject to article 180 which details the procedure for censure by Parliament and therefore the President cannot use the immunities under the constitution to discontinue the work of a tribunal established under article 180.
The immunities presently granted have been scaled down from what existed under the 1980 constitution. They do not shield the Presidency from challenge. And the holder is certainly not above the constitution.

---

---