THE recent announcement by former president Bharrat Jagdeo that he refused to answer questions pertaining to the Sparendaam ‘Pardoville 2’ matter when asked by the State Organised Crime Unit because he is protected under presidential immunity, is generating healthy public conversation. Such conversations could widen our knowledge bases and play an important role in making us better citizens, especially when guided by objectivity and supported by evidence.
The contentious immunity article in which Mr Jadgeo sought refuge is Article 182. This article, inter alia, says no criminal or civil proceedings shall be brought against the president for anything that he did or did not do while in office and even after leaving office.
The debate against presidential immunity has its genesis in the derisively described ‘Burnham Constitution,’ which it was felt lacked widespread support and was created by then Prime Minister Forbes Burnham to establish himself as king and unanswerable to the people. There is no intent to address this political argument, because in our society integrity rising to the fore seldom, if ever, is allowed to survive, given the thinking of those involved that too much is at stake to be proven wrong.
This newspaper’s preferred approach is looking at the issue through empirical facts, even as it encourages the debate in whatever form. It is a fact that immunity is a constitutional provision in other countries. Guyana joins Trinidad and Tobago, the United States (U.S.), Korea, and other countries in this regard.
The argument that the president having taken the Oath of Office to “…honour, uphold and preserve the Constitution of the Cooperative Republic of Guyana” and therefore cannot be above what is enshrined therein has not met any counter argument, whether taking this oath puts the president above the constitution. According to BusinessDictionary.com, an oath is a “Solemn affirmation or pronouncement (often accompanied by swearing to God, a revered person, scripture, or a national symbol such as the country’s constitution or flag) that what one says is true, and he or she is bound by it.” Commonsense extrapolation leads one to conclude that having accepted as truth the Oath of Office and being bound by it carries the responsibility to maintain it. Conversely, if not maintained, it suggests non-compliance, which would have consequences.
The question of presidential immunity was tested in the U.S. nine-man Supreme Court, a country considered the world’s greatest democracy. In 1982 a private civil case was brought against former President Richard Nixon. The court, which comprises Republican and Democratic-appointed justices, by majority decision, ruled that a president “Is shielded by absolute immunity from civil damages liability.” Dissenting Associate Justice Byron White wrote that he “does not agree that if the office of President is to operate effectively, the holder of that office must be permitted, without fear of liability and regardless of function he is performing, deliberately to inflict injury on others by conduct he knows violates the law.”
Again in 1997, the same court was asked to determine the matter of presidential immunity for then sitting President William “Bill” Clinton appearing in a civil matter brought by Paula Corbin Jones that occurred prior to his presidency. Clinton invoked presidential immunity to avoid the proceeding being brought and heard. By majority decision, the court ruled that there is a limit to immunity and the hearing of the case does not fall within this remit.
The Justices argued that a civil charge does not prevent the president in the discharge of his daily duty, in that his representation does not have to be in person, but through his lawyers and his testimony can be taken at the White House at a time convenient to him. Dissenting Justice Steven Breyer expressed scepticism that such a trial will not impede the president in the discharge of his duties.
Last December, South Korea’s Parliament voted to impeach President Park Geun-Hye on allegations of corrupt practices. Earlier this month, the country’s Constitutional Court accepted the parliament’s verdict. Korea has presidential immunity from criminal liability and corruption is considered a criminal offence. The Pradoville 2 matter has to do with the 2015 findings of the State Assets Recovery Unit that State land was acquired and sold in 2010 during Mr Jagdeo’s presidency without regard for due process under the law, and that he too was a beneficiary of the act. Are there any limits to presidential immunity here and does Pradoville 2 fall within their scope of? Let the court have its say.