Immunities of the President and the State

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By Mohabir Anil Nandlall, Attorney-at-Law

(The following is an opinion piece written by Mr. Nandlall, a former Attorney General of Guyana)

The legal immunities which the Executive President of Guyana enjoys, is regularly, recklessly and unwittingly invoked in political quarters whenever it is expedient and convenient to do so. Invariably, the true nature and effect of these immunities are, wantonly distorted and hopelessly misrepresented, to suit whatever maybe the current political agenda.

Politicians who are members of the learned profession and who are, therefore, expected to know better, unfortunately, are the ones most guilty. Expectedly, the innocent lay-man latches on to these misguided pronouncements, as gospel.

As a result, there is now a whole body of misinformation regarding the true nature and effect of these legal immunities. Only a few days ago, no other than the Attorney General, spewed a plethora of misconceived notions in relation to presidential immunities, to the press. The distortions received wide coverage. I now feel compelled to offer some clarifications on this subject. I will treat with immunities of both the President and the State. They are inextricably entwined.

 

Article 182

 The immunities of the President are contained in Article 182 of the Constitution of Guyana. The relevant portions read:

181 (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.

 

(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 immunities that an Executive President enjoyed under the 1980 Constitution were much wider. However, the Constitutional Reform Commission (1999-2001), reviewed these immunities, trimmed it of its excesses and modified it to bring it into conformity with the amalgam of immunities conferred upon most Heads of State in the English speaking Commonwealth.

There is no doubt that the immunities that Heads of State enjoy in the English speaking Commonwealth, is a relic of the Royal Prerogative and immunities attached to the Crown. In countries governed by the Rule of Law and a written Constitution that is supreme, the Judiciary has repeatedly struck down pleas of immunity, whenever they collide with the letter and spirit of the Constitution and have uniformly, bent and bowed immunities of whatever kind, to make them subservient to the glory of constitutional supremacy and the Rule of Law. A few examples may be useful.

JUDICIAL INTERPRETATIONS

In Levesque v Attorney-General of Canada (1985) 25 DLR (4th) 184, a writ of mandamus was issued to enforce the constitutional right of a serving prisoner to vote. Rouleau J said (at pp 191,192):

‘If the Canadian Charter of Rights and Freedoms, which is part of the Constitution of Canada, is the supreme law of the country, it applies to everyone, including the Crown or a Minister acting in his capacity as a representative of the Crown. Accordingly, … the Crown or one of its representatives cannot take refuge in any kind of declinatory exception or rule of immunity derived from the common law so as to avoid giving effect to the Charter.’

 Canada is still a constitutional monarchy. Yet the court issued a writ of mandamus against the defendants at the bar, which included the Attorney-General as the State’s representative.

In N Nagendra Rao v State of Andhra Pradesh AIR 1994 SC 2663, R M Sahai J of the Indian Supreme Court said at para [24] of his judgment:

‘No legal or political system today can place the State above the law as it is unjust and unfair for a citizen to be derived of his property illegally by the negligent act of officers of the State without a remedy… The modern social thinking of progressive societies and the judicial approach is to do away with archaic State protection and place the State or the Government at par with any other juristic legal entity.’

 In Byrne v Ireland [1972] IR 241 at 281, Walsh J sitting in the Irish Supreme Court stated as follows:

‘Where the People by the Constitution create rights against the State or impose duties upon the State, a remedy to enforce these must be deemed to be also available. It is as much the duty of the State to render justice against itself in favour of citizens as it is to administer the same between private individuals … There is nothing in the Constitution envisaging the writing into it of a theory of immunity from suit of the State (a State set up by the People to be governed in accordance with the provisions of the Constitution) stemming from or based upon the immunity of a personal sovereign which was the keystone of a feudal edifice. English common-law practices, doctrines, or immunities cannot qualify or dilute the provisions of the Constitution.’

NONE IS ABOVE THE LAW

The Courts have adopted a similar approach to constitutional provisions that confer immunities upon a Head of State. While faithfully giving effect to the letter of the language of these provisions, Judges have skillfully interpreted their spirit to be, that the framers of the Constitution could have never intended the beneficiaries of these provisions to be elevated above the law, made superior to the Constitution, and placed beyond the reach of the Courts of Justice. Since to do so, would render them above the law: a notion that is the very antithesis of the rule of law.

 

In Karunathilka v Commissioner of Elections (1999)4 LRC 380 at 398. Fernando J, in dealing with the effect of the art 35(1) of the Sri Lanka Constitution (which is very similar to art 182 of the Guyana Constitution), said.
I hold that art 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; as for instance, a defendant or respondent, who relies on the act done by the President to justify his own conduct.”

 At home, our own Mr. Justice of Appeal, Ian Chang SC, enunciated the relevant principles with commendable clarity:

“Article 9 of the 1980 Constitution expressly states ‘Sovereignty belongs to the People’ and not to the presidential Head of State. The immunities which attach personally to the President under art 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. [Baird v Public Service Commission (2001) 63 WIR pg 134 at 164]

In conclusion, the following clear principles can be distilled from the authorities cited above: firstly, in Guyana, violations of the law by the State or its officers enjoy no immunity; the State and its officers are equal to any other legal entity in the eyes of the law; secondly, the President is personally immune from suit but his actions or decisions are not; they are challengeable by proceedings filed against the State.

 

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