ARTICLE 182 IS INNOCUOUS

Apr 02, 2013 Features / Columnists, Peeping Tom

The Kaieteur News gave me a shock on Sunday recently. It reported that a sixty –five year old man had marched seventeen miles bearing a cross and a placard to protest Article 282 of the Constitution of Guyana.
I cannot recall the constitution of Guyana having 282 articles. So I assume that what was really being deemed as poisonous was Article 182 which deals with the immunities of the President.
This old man could have been saved all that walking and protesting, if someone had explained to him that notwithstanding the immunities that a President has, the Head of State cannot act contrary to the laws and Constitution of Guyana.
Article 182 of the Constitution immunizes the President of Guyana from being personally answerable to the courts for actions done while he holds the presidency. It also holds that the President cannot be criminally charged for any action that he took while as President.
However, this does not mean that the actions of the President are shielded from judicial review. They are not. The immunities of the President protect him from prosecution and from being held personally answerable, but they do prevent the actions themselves from being overturned.
This point was brought out in the action that was filed by C. N. Sharma against the decision of the President, acting as Minister of Information, to suspend his station. And this is worth repeating here as it seems there is some confusion over the issue of immunities.
The fact that a president is immune from prosecution does not grant automatic legitimacy to every action that he or she may take. The immunities of the president do not prevent the courts from vitiating any action that it finds to be in contravention of the law or the constitution.
The President is not above the law, or above the constitution. The constitution may debar him or her from being held personally liable but it does not oust the jurisdiction of the courts from overturning actions that are unlawful and unconstitutional.
As such, if any person feels that the licenses granted by the former President in 2011 were granted in an arbitrary manner, inconsistent with the constitution and in violation of the Broadcasting Act, then that person can seek recourse in the courts.
The former President cannot he personally sued or held liable because the constitution immunizes him against these things. But the government and the State can be held liable since the immunities do not legitimize the actions of the President.
If therefore there are persons who feel that the broadcast licenses granted in 2011 were not covered by law, then it matters not that there is Article 182. The actions of the President must be subject to the law and if it can be established that these actions may not have been in accordance with the law, then the courts are likely to overturn the actions.
Also, if the government is of the opinion that the former President granted licenses using his discretion, that discretion has to be under some law and not by virtue of Article 182.
So under which law were the licenses granted? This is what those who are concerned about the grants of the 2011 licences must answer, not about Article 182 which has been pared of some of its 1980 powers and which is not as poisonous as some make it out to be. In fact, Article 182 is quite innocuous.

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ARTICLE 182 IS INNOCUOUS

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