Arguments over Presidential immunity commences in PSC court case

Sep 01, 2021 News

Kaieteur News – Arguments over whether the immunity of President, Irfaan Ali, exempts him from being named as a respondent in the court case filed by the Police Service Commission (PSC), has commenced in the High Court.On Monday, presiding Justice, Gino Persaud, heard submissions from lawyer for the PSC, Selwyn Pieters, as well as Attorney General (AG), Anil Nandlall, SC, on whether the President could be listed in the case filed to challenge the suspension of the PSC.

Chairman of the PSC, Paul Slowe

Nandlall has argued strongly that the joinder of the President to the proceedings is contrary to, and in contravention, of Article 182 (1) of the Constitution of Guyana Cap 1:01 and Section 10 of the State Liability and Proceedings Act, Cap 6:05.

As such, the AG is seeking a declaration that the joinder of the President to the proceedings is contrary to and in contravention of Article 182 (1) of the Constitution. He therefore wants an order that Ali be removed forthwith as a party to the court matter.

In his submission before the Court, Nandlall noted that Article 182 is the provision in the Guyana Constitution that sets out the immunities and privileges, which the President has.

President, Irfaan Ali

“It confers upon His Excellency, the President of the Cooperative Republic of Guyana, absolute immunity from the curial process during his tenure of office and thereafter, but in relation to acts performed during the tenure of his Presidency. Article 182 states – “(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 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,” the AG outlined in his presentation.

Further, he noted that it cannot be disputed that the action of the President, which is being challenged by the respondent/applicant, is a decision made in the performance of the functions of his office as President.

“This decision is the suspension of the Police Service Commission, the respondent/applicant, until a Tribunal has been appointed. The President was clearly exercising (whether rightly or wrongly, which is a question to be addressed in the substantive proceedings) a power vested in his office under Article 225 of the Constitution,” Nandlall added.

Meanwhile, Selwyn Pieters urged the Court to dismiss Nandlall’s application. “His Excellency [President Irfaan Ali] is indeed a proper and appropriate party being named in his official capacity,” Pieters said.

He noted that Ali’s actions are central to what the case is about and that is why he is named as a party. Pieters stressed that the case challenges a decision made by the President in his official public office.

Further, in response to Nandlall’s reference to a lack of the absence of precedence, the attorney stated that this does not mean that the naming of the President in his official capacity is unlawful. “What the Constitution does not prohibit cannot be said to be prohibited by common law or case laws from other jurisdiction,” he said.

The lawyer contended that some of the case laws relied on by the AG were “not properly decided” and, therefore, urged the Court not to take guidance from them. The PSC’s lawyer was adamant that the Attorney General’s interpretation of the law runs contrary to the Constitution, as well as to the spirit and purpose of Presidential powers, privileges, and immunities.

The case is set to resume on September 16 when the court will decide on the issue of the Presidential immunity.

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