The issue of presidential immunity reached a high point in the United States during last week in the hearing of a case in the United States Supreme Court brought by former President Donald Trump. Mr. Trump has long vociferously advocated that he is protected by presidential immunity from the prosecution instituted against him against him relating to the violent January 6 insurrection in Washington aimed at preventing the declaration of the election results and, consequently, a transition of power. There is no dispute that, based largely on US case law, a president is not immune from prosecution for unofficial conduct which constitute criminal offences, but is immune from acts arising from official conduct and the “outer perimeter” of such conduct. Mr. Trump’s lawyers argue that his actions in the January 6 events constituted official conduct.

The issue of presidential immunity is not specifically referred to in the US Constitution. However, constitutions in modern times do make provision for immunity for heads of government and/or heads of state and, in some cases, legislators. Usually, but not always, these immunities end when the official no longer holds office. Guyana’s Independence Constitution of 1966 does not contain any specific provision granting immunities to officials, but the 1980 constitution created a head of state with monarchical powers – placing him or her above the law.

Article 182 provides as follows: (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. (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 is claimed against him or her or anything done or omitted to be done in his or her private capacity. 

No one would have any quarrel with sub-article (1). It merely gives the President immunity from civil or criminal suit in connection with the performance of official acts. Where the President performs official acts which can be challenged in court, the normal procedure in Guyana is that the Attorney-General is named as a party rather than the President so that, notwithstanding the protection given to the President from suit, the citizen is not deprived of relief from official acts of the President which might be unlawful. This occurs in non-controversial cases. For example, the President has authority under the State Lands Act to issue leases for State Lands. Presidents of Guyana have done so frequently on the advice of the Guyana Lands and Surveys Commission or the Mahaica-Mahaicony-Abary Agricultural Development Authority.  Such a grant may be challenged by a person who may claim a prior entitlement to a grant. Such a person can bring suit against the Attorney General to have his or her rights to such prior entitlement determined by the court.

During the 2016 presidential campaign in the US, in a now infamous claim, Mr. Trump declared that he can stand up on Fifth Avenue and shoot someone without losing support. However, whether president or not, he is not protected from criminal prosecution for so doing. In Guyana a President can stand up in Regent Street and shoot a shopper dead and by virtue of article 182(2) he or she would be immune from prosecution even after he or she ceases to be President. The article clearly states that no criminal or civil proceedings shall be brought against a President for any act or omission committed by him or her in his or her private capacity.

Guyana’s President was placed above the law by article 182(2) of the Constitution in the era when it was expected that if the then President were to lose office for any reason, he may have had to face criminal prosecution. I have absolutely no idea how this article survived the constitutional reform process in 1999-2000, democracy having been restored to Guyana. I can find no record of any discussion of it even though presidential powers were discussed and the size of the majority for impeachment of a President was reduced from three-quarters to two-thirds.

I cannot say if the failure of the Constitution Reform Commission to make any recommendation on the issue in 2000 was the result of opposition, omission or oversight. It could be, if the issue was discussed, that the PPP/C was alarmed at the intensity of violent opposition to it and feared vendetta in the form of harassment by way of meritless criminal prosecutions, public or private, against its president. But the Report contains no record of a discussion on the issue. Hopefully, the current Constitutional Reform Commission will recommend the cleansing of our Constitution of this diabolical travesty of equating our President to a monarch.

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