Immunity provision invoked for benefit of President seems only to apply to ‘anything done in his private capacity’

Dear Editor,

I refer to the news published everywhere that His Excellency Dr. Irfaan Ali, President of Guyana, has been adjudged to be immune from the prosecution of certain charges levied against him in or around November, 2018.  Since it has been widely affirmed that democracy has prevailed in Guyana after attempts to subvert it, I trust that I can be permitted this attempt to clarify exactly which provision or provisions of the Constitution were evoked to his benefit in the case of President Ali.  I trust that my efforts to find the precise provisions will be assisted by persons well versed in the law and especially in constitutional law.

Since the keeper of the Constitution, the Attorney General, has proclaimed the PPP’s victory as the triumph of “Good over Evil”, it is fitting in a matter of public morality to identify, if possible, a difference in behaviour between these two camps.  When a Constitutional Commission was at last established after the PPP’s victory in 1992 and the much hailed “returned to democracy”, it may surprise today’s readers to learn that the Good (PPP) and the Evil (PNC) joined forces to retain the most opposed provision of the 1980 Burnham Constitution. Appearing in Article 182, it rightly bars court proceedings against the President during the term of office.  It also goes beyond reason and protects the President after the term of office is ended.  It does worse.  The provision protects an incoming President from prosecution for offences alleged against the President “in his private capacity”, before arriving at the presidency.  The Good and the Evil closed ranks to defend these provisions, against efforts of the civic and WPA members to abolish them.

In my own limited understanding, Article 182 of the Guyana Constitution provides the following immunities:

1. A President of Guyana, while President, is not answerable to any court for actions taken by him or her while exercising the duties and functions of the office of President.  Because of this, no criminal or civil proceedings can be laid against a President in his or her personal capacity during the term of office or even after the term of office.
2. No person or authority can lawfully introduce or begin criminal proceedings against a President, or continue a case previously filed, if that case refers to anything done by the President in his or her private capacity.
3. The President is also protected from civil suits seeking to obtain from the President any form of relief, such as compensation or damages.

These are the immunities that I, as a layman, can detect in the constitutional provisions, as detailed in Article 182.

In my opinion, the immunity at No. 1 above is not the one evoked or relied on, since there is no allegation on record of proceedings against the new President relating to his presidential functions.

Since the allegations known to be made by SOCU against the person who is now President were of a criminal nature, we must look to the immunity listed as No. 2 in this letter.  Specifically, the President’s accusers were not allowed to “continue” criminal proceedings against him on the strength of this provision.  Up to this point, all seems to be in order, except that the provision evoked to the benefit of the President seems on the surface to apply to “anything done in his private capacity”.  This is just where legal scholars and experts may be able to assist, because from my own point of view, the actions alleged against Dr. Irfaan Ali, as Minister of Housing, were not alleged against Dr. Irfaan Ali in his private capacity as citizen, husband and father.

I had paused my dictation here and soon had the good luck to stumble on a programme on Global Span 24 x 7 Live, moderated by Dr. Asha Kissoon,  a presidential candidate in the recent elections and featuring two Guyanese Attorneys at Law. Although the discussion did not include the issue of Dr. Ali’s “private capacity”, it was an eye-opener for me in other ways.  Attorney at Law, Mr. Timothy Jonas, with his usual clarity, argued that the provision in 182, preventing the institution and the continuation of proceedings against a person in President Ali’s situation, did not mean that the charges had to be withdrawn.  He argued what would be plain to any lawyer at first readings was that the proceedings could have been “stayed” under the same provision.

Attorney Sanjeev Datadin expressed the opinion that, in the first place, the charges may have been politically motivated.  His colleague did not rule out similar motivation in the withdrawal of the charges.  I learned in this discussion and the public should be aware that even the powers of the Director of Public Prosecutions, although written in absolute terms in the constitution, are subject to judicial review.  In fact, one of the encouraging features of the series of trials following the March 2, 2020 General Elections has been the seriousness with which the attorneys concerned, distinguished cases from one another, causing the sitting judges, whether they agreed or disagreed, to draw deeply on their own resources.

Although I have a deep interest in the political and administrative processes that made Pradoville 1 and Pradoville 2 possible, I know nothing of the particulars of the allegations forming the case against the former Minister of Housing, Dr. Ali.  What cannot be denied or obscured in both schemes is the huge conflict of interests so unhelpful to our small population.

When a few of us challenged the first Pradoville on the Ogle driving road, HPS Dr. Luncheon, defended the arrangement on the ground that “the comrades had sacrificed much for many years”.  After this early triumph of the Good over Evil, the comrades were reaping their rewards here on earth and did not have to wait until they got to heaven.  Soon after 1992 and the return of the PPP to office, it copied almost word-for-word the Canadian Revenue Act and applied it in Guyana, thus gaining control of Customs and other key departments.

I say “almost” because the Canadian Act allowed existing officials the right to choose whether they wished to serve in the new Authority.  In Guyana’s version of the Act, it was the Minister who decided which officers were absorbed in the new Authority or sent home.  A study of current Governmental issues in Canada will point the Guyana Government, if it is interested, to a few ways in which the Canadian Government is at this moment dealing with cases of conflict of interests, resulting in apparent benefits to elected officials.

Yours faithfully,

Eusi Kwayana