As the debate of presidential immunity continues, the previous administration is sticking by its
arguments that nothing in law allows for prosecution if a former leader decides to return to politics.
Former Attorney General and executive of the People’s Progressive Party (PPP), Anil Nandlall, over the weekend said that the immunities which are conferred upon the President of Guyana by Article 182 of the Constitution are expressed in reasonably clear language.
“They can be paraphrased thus: a President shall not be personally answerable to any court for any act done in the performance in the functions of his office; no criminal, nor civil proceedings can be instituted against him, in his personal capacity in respect of any acts done in the performance of his office, either during the term of office or thereafter; while he holds office or performs the functions of Office of the President, no criminal nor civil proceedings shall be instituted or continued against him in respect of anything done or omitted to be done by him in his private capacity,” he said in a statement.
He pointed out that Bharrat Jagdeo held the Office of President and performed the functions of that office during the period 11 August 1999 – 3 December 2011.
“It is equally clear that Pradoville 2 was developed and lots allocated thereof to the several allotees during the period that Mr. Jagdeo was President.”
Jagdeo and his former Cabinet Secretary, Head of the Presidential Secretariat, Dr. Luncheon, were arrested last week by the Special Organised Crime Unit (SOCU) and questioned into their role of developing Pradoville Two, an East Coast Demerara housing scheme that catered to several former government officials and a few favored friends of the then administration.
Tens of millions of dollars in state funds were used to move a transmitting tower, develop the
scheme, fly in electrical power cables, and routing water lines. The land was reportedly sold below market values without any advertisements.
Also questioned by SOCU were several former ex-ministers, parliamentarians, executives, a former army chief, and even the current Director of Public Prosecutions.
According to Nandlall, a Parliamentarian who has been extremely vocal, defending his party’s actions while in power, applying the clear and literal language of Article 182 of the Constitution, whatever may have been his role, Jagdeo could not personally be answerable to any court for it, nor can criminal or civil proceedings be instituted against him.
“If a person is not answerable to a court for; any acts committed during a given period and/or, no criminal nor civil proceedings can be personally instituted against him in relation thereto, it logically follows that he cannot be arrested or detained for any of those acts.
“Consequently, there is no doubt that, Bharrat Jagdeo’s arrest and detention were unlawful,” Nandlall insisted.
On Friday, Minister of State, Joseph Harmon, while saying that a former president enjoys immunity from prosecution for his actions in office, made it clear that the situation can change if that person decides to come out of retirement.
Harmon stressed that law can be viewed from different perspectives and pointed to a current situation in South Korea where a sitting leader was ordered by a court to step down and may face criminal charges for alleged wrongdoings.
Jagdeo has returned as his party’s leader and is from all indications eyeing a third term after a court battle to determine whether a law to limit the presidential term in office to two was legal.
“Whether a constitutional entitlement ensures to a person or not and to what extent it does so, can never fall to be determined by a policeman. It is unfortunate that such a view emanates from a lawyer. These are the types of uninitiated utterances which send wrong and dangerous signals.” The former AG said that these actions can result in high constitutional protections, rights and freedoms to be whittled down by the opinion and interpretation of a legally untrained policeman. “I am sure that Mr.Harmon would not allow the constitutional legal immunities which he enjoys for things said and done in the Parliament, to be determined by a Police Constable. Imagine what will happen if Mr. Harmon is arrested in the Parliament compound for something he said in an address to the National Assembly.”
Nandlall was clear that there is absolutely nothing contained within the letter or spirit of Article 182 of the Constitution which lends to the interpretation, that a former president can or will lose the immunities which he enjoyed as president if he returns to active politics.
“Such a proposition is so deeply flawed that it only needs to be stated to be rejected. Being in active politics, holding political views and engaging in political agitations are all guaranteed to every citizen as a fundamental right and freedom by the very Constitution.
It lacks rationality that a person will or can lose a protection which the Constitution affords by the exercise of a right which the very Constitution confers. Is it not absurd to contend that, Mr. Jagdeo’s presidential immunities would have remained intact if he had pursued a career in cricket after he demitted office but that he stands to lose it, if he returns to active politics?”
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