Sep 17, 2021 News
Kaieteur News – Justice, Gino Persaud, yesterday affirmed the provisions of Article 182 (1) of the Constitution of Guyana which prevents a sitting President from facing civil lawsuits and other types of court proceedings.
Justice Persaud was at the time handing down a decision on an application filed by the Attorney General (AG), Anil Nandlall, to challenge the move by attorneys representing the Police Service Commission (PSC) to list President, Irfaan Ali, as a respondent in a civil matter.
Nandlall had 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 which assures immunity of the President from any legal proceedings.
The AG had also requested an order of the court that Ali be removed from being listed as a party to the court matter. Justice Persaud said that the purpose of the aforementioned article is to confer on the President, in his official capacity, immunity from judicial scrutiny for acts performed pursuant to his office.
In his ruling yesterday, Justice Persaud affirmed the contentions of the AG. He noted to name the President and the Attorney General [Anil Nandlall] as a respondent in a case is “impermissible and wrong in law.”
The Judge noted the PSC team confused the concepts of immunity with impunity, when they argued that the President was rightfully named as a respondent.
Persaud said that under the provision of the Constitution, the President enjoys broad immunity
“It is a shield, a constitutional shield of immunity,” he asserted, and added that the President cannot be made to answer to the Court in either his personal or official capacity, but the State can still be held liable for the President’s actions.
As such, Justice Persaud that there is no need for the President and AG – the State’s legal representative to be listed in the case.
In June 2021, the President had suspended the PSC headed by Chairman, Assistant Commissioner of Police (Ret’d) Paul Slowe, after the Chairman along with other sitting members of the Commission, Claire Jarvis, Vesta Adams, Michael Somersall, and Clinton Conway, were all slapped with fraud-related charges.
Slowe, Conway and others were charged with defrauding the Guyana Police Force (GPF) of $10M. Slowe was also accused of sexually assaulting a female cop on three occasions.
The move to suspend the PSC was made after Prime Minister, Mark Phillips, sent two “show cause” notices to Slowe and the other commissioners.
The men, all retired Assistant Commissioners of the Guyana Police Force were asked to ‘show cause’ to Phillips, as to why he should not follow the advice of the President to remove them from the PSC. They failed to do so.
As a result, the PSC was suspended and the men moved to the High Court to challenge the suspension order and to seek to have it revoked. Their lawyers Selwyn Pieters, Dexter Todd and Dexter Smart, had however listed the AG and President Ali as respondents in the matter. Pieters urged the Court to dismiss Nandlall’s application.
During the proceedings, Pieters urged the court to consider that: “His Excellency [President Irfaan Ali] is indeed a proper and appropriate party being named in his official capacity.”
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.
However, in a submission before the Court, Nandlall cited that Article 182 is the provision in the Guyana Constitution that sets out the immunities and privileges, which the President has.
“It confers upon His Excellency, the President of the Co-operative 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 had outlined.
Meanwhile as a result of the decision by the court to uphold Nandlall’s contentions, the PSC was ordered to pay $200,000 in court costs to the Attorney General. The parties will return to court on November 16, for arguments relating to the substantive matter.
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