Jagdeo and Burnham’ perception stronger than reality

Mar 11, 2017 Letters

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Dear Editor,
In Guyana, presidential immunity is governed by Article 182 (1) and (2) of the Constitution. Let us deal with the material parts of the respective paragraphs (1) and (2) in turn and rather briefly. 182 (1)… “The holder of the office of President shall not be personally answerable to any court for the performance of the functions of his or her office or for any act done in the performance of those functions and no proceedings, whether criminal or civil, shall be instituted against him or her in his or her personal capacity in respect thereof either during his or her term of office or thereafter.”
This would suggest that the president is immune from personal liability (criminal or civil) ‘for the performance of the functions (official) of his or her office or for any act done in the performance of those (official) functions’ during or after his tenure. Now let’s turn to the other part.
(2) ‘Whilst any person holds or performs the functions of the office of President no criminal proceedings shall be instituted or continued against him or her in respect of anything done or omitted to be done by him or her in his or her private capacity and no civil proceedings shall be instituted or continued in respect of which relief claimed against him or her or anything done or omitted to be done in his or her private capacity’.
The second limb of immunity contemplates private acts of the president engaged in while in office and which may give rise to criminal or civil liability. The president may be answerable when he or she demits office for any such private conduct. At the outset it becomes clear that immunity is not absolute. The president is not elevated upon the shoulders of us lesser mortals and deemed to be unreachable by the law. Any such state of affairs is radically opposed to any civilised concept of democracy.
The real question then becomes, can the president enjoy immunity, especially a president who no longer holds office, for criminal or civil liability when his official actions are glaringly and deliberately inconsistent with his oath of office? The question then becomes, did former president Jagdeo acquire his lot in Pradoville 2 as a private citizen like his counterparts or in his capacity as president of Guyana? The second question might the less challenging one to answer. If as a private citizen then this might be collusion with NICIL to defraud the people of Guyana; and otherwise, it would be a clear act of presidential impropriety.
Let’s deal with the first question. In Baird –v- Public Service Commission (2001) former Chief Justice Chang reminds us that by virtue of Article 9 of the 1980 Constitution, ‘sovereignty belongs to the people and not to the presidential head of state. The immunities which attach personally to the President under article 182 of the Constitution are for the limited purpose of ensuring effective performance of the functions of his high office, and not for the purpose of granting immunity to the State for any official wrongdoing. The State would still be liable for the President’s wrongdoing, even though the President himself would be immune from the curial process. It is the President, who is immune from the curial process, not his acts.’
Nandalal as recently as February 24, 2017 in his contribution in the Daily News titled ‘Immunities of the President and the State’ quoted the learning in Karunathilka v Commissioner of Elections (1999) relative to Article 35 of the Sri Lankan Constitution which, in his estimation, is strikingly similar Article 182 of our Guyana’s Constitution:
“I hold that article 35 only prohibits the institution (or continuation) of legal proceedings against the President while in office; it imposes no bar whatsoever on proceedings (a) against him when he is no longer in office, and (b) other persons at any time; that this is a consequence of the very nature of immunity; immunity is a shield for the doer not for the act. Very different language is used when it is intended to exclude legal proceedings, which seeks to impugn the act. Article 35, therefore, neither transforms the unlawful act into a lawful on, nor renders it one which shall not be questioned in any court. It does not exclude judicial proceedings of the lawfulness or propriety of an impugned act or omission in appropriate proceedings against someone who does not enjoy immunity from suit…”
In conclusion, former president Jagdeo has very skilfully positioned himself as the virtually certain presidential candidate of the PPP comes 2020. The PPP/C government, especially under his tenure, is perceived to have been corrupt materially to a greater degree than the perceived power-drunkenness of the PNC under Burnham. As Professor Bishop used to say to us, ‘perception is often stronger than reality’.
Ronald J. Daniels

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