– AG tells Court of Appeal

ATTORNEY General Basil Williams SC, says presidential immunity serves the purpose of staving off possible indignities that may be thrown the way of the head of state, noting that every dignity must be accorded to the office of the President as he is the trustee of the people and that only immunity can ensure the dignity of his office.

Williams made the remarks in both written and oral submissions on Tuesday, when the Court of Appeal heard the final arguments in the challenge by the People’s Progressive Party to President David Granger’s decision to appoint Justice (rtd) James Patterson as Chairman of the Guyana Elections Commission. The decision was made following three not acceptable lists submitted by leader of the opposition to the President.

After close to two hours of arguments on Tuesday by Williams and his team and Attorney-at-Law, Anil Nandlall, who is representing the appellant Zulfikar Mustapha, Chancellor of the Judiciary (ag), Justice Yonette Cummings-Edwards set today for the decision. The case is being heard by the chancellor and Justices Dawn Gregory and Rishi Persaud.
Before the date for the decision was announced, the parties involved, in their arguments, responded to four questions put forward by the Appellate Court.

Those questions were: (1) Whether the Orders sought in paragraphs III and IV in Fixed Date Application dated the 23rd day of October, 2017, or the effect of those Orders can be granted by way of these proceedings; (2) whether Article 177 has any bearing on the President’s role under Article 161 (2); (3) whether the role of the leader of the opposition in submitting a list under Article 161 (2) is restricted only to the category of “other fit and proper persons”; and whether the list is still valid, if not all six persons are deemed not unacceptable.

Attorney General Williams, while thanking the court for posing the questions to the parties involved, said the President’s act of appointing Justice Patterson Chairman of GECOM was done during the performance of his office under Article 182 (1) and Article III (1) of the constitution.

In his submission, Williams said the constitutional provisions on presidential immunity are found in Article 182 of the constitution, Article 182, which 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. “Article 182 gives the President of Guyana immunity from legal action and applies to the President himself and includes criminal indictments or civil suits. This means that no court can compel the President to exercise any power or perform any duty or to desist from doing so. It also means that no court can prosecute the President. This protection is wide and covers all actions. It is important to note that Article 182 of the Constitution affords the President two types of immunities,” Williams argued.

Personal capacity
He cited that Article 182 (1) speaks to actions done by the President in his personal capacity. In his personal capacity, the President is not personally answerable for any performance of the functions of his or her office, or for any act done in the performance of those functions. Additionally, once those actions are done or omitted to be done during the performance of those functions, then no criminal or civil proceedings can be instituted against him in his personal capacity, Williams advanced.

He told the court that this immunity is subject only to article 180 of the constitution, which deals with the removal of the President by the National Assembly for violation of the constitution, or for gross misconduct. “The purpose of 180 is to have an avenue where the President can be made personally answerable to the Parliament. On the other hand, the purpose of Article 182 (1) is to grant the President immunity from legal proceedings in court. The case R v Bartle and the Commissioner of Police for the Metropolis and others EX Parte Pinochet (1999) 2 W.L.R. 827, illustrates the meaning of ‘personal capacity.’ In this case, Senator Pinochet (former head of state) was not entitled to immunity, as torture, hostage-taking and crimes against humanity, committed while he held office fell beyond the functions of a head of state.

Not above law
Meanwhile, Williams made it clear that the President is not above the law and said while the constitution grants the President immunity, this is to allow him to perform the functions of his office. He cited a Guyanese case Baird v Public Service Commission (2001) 63 WIR 134, where CJ Chang held that at page 164- “The immunities which attach personally to the President under article 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 wrongdoing. The state would still be liable for the President’s wrongdoing, even though the President himself would be immune from the curial processes. It is the President who is immune from the curial process, not his acts.”

Additionally, Williams said in India, it would seem that the President’s acts are justiciable, but only for actions done by the President in his personal capacity (not official), and once he no longer is President. Article 361 of the Indian constitution provides for certain privileges among which is that- “No civil proceedings in which relief is claimed against the President(or a governor)shall be instituted during his term of office in a court in respect of any act done or purported to be done by him in his personal capacity, whether before or after he entered upon his office until: (i) A notice in writing has been delivered to the President or (Governor); (ii) Two months have elapsed after the service of such notice; (iii) The notice states the nature of proceedings and description of the party taking the proceedings and the relief claimed.”

However, commenting on actions done by the President in his official capacity, Dr. Shir Dayal in Constitutional Law of India, Allahabad Law Agency (1981) at page 235 opines: “This provision implies that as far as acts done or purported to be done by the president (or governor) in his official capacity are concerned, no civil proceedings can be brought, as there is an absolute bar against it under article 36.”

Williams pointed out to the court that another jurisdiction to consider is Sri Lanka: citing a case Mallikarachchi v Shiva Pasupati (1985) 1 SLR 74, where the Chief Justice Sharavanda explained the rationale for the immunity doctrine, stating that “it is very necessary that when the Executive Head of State is vested with paramount power and duties, he should be given immunity in the discharge of his functions.” Dealing with the purpose of Article 35 of the Sri Lankan constitution, he said at page 78, “The principle upon which the President is endowed with this immunity is not based upon any idea that, as in the case of the King of Great Britain, he can do no wrong. The rationale of this principle is that persons occupying such a high office should not be amenable to the jurisdiction of any but the representatives of the people, by whom he might be impeached and removed from office; and that once he has ceased to hold office, he may be held to account in proceedings in the ordinary courts of law.”

Following this reasoning, Williams said the chief justice observed that the President is not above the law of the land. The chief justice observed that the immunity of head of state is not unique to Sri Lanka and noted that the efficient functioning of the executive required the President to be immune from judicial process. “[i]f such immunity is not conferred, not only the prestige, dignity and status of the high office will be adversely affected, but the smooth and efficient working of the government of which he is the head will be impeded. That is the rationale for the immunity cover afforded for the President’s actions, both official and private.”

Proceedings against AG
On whether the attorney general should be answerable for acts done by the President in his personal and or official capacity, Williams contended that Article 182 and in fact the entire constitution is silent on the role of the attorney general with respect to this matter. This, he said, can be contrasted with the Sri Lankan constitution, which sets out clearly in the proviso to Article 35 (1) that- “35. (1) While any person holds office as President of the Republic of Sri Lanka, no civil or criminal proceedings shall be instituted or continued against the President in respect of anything done or omitted to be done by the President, either in his official or private capacity: Provided that nothing in this paragraph shall be read and construed as restricting the right of any person to make an application under Article 126 against the attorney general, in respect of anything done or omitted to be done by the President, in his official capacity; provided further that the Supreme Court shall have no jurisdiction to pronounce upon the exercise of the powers of the President under Article 33(2) (g).”

“Consequently, in proceedings in respect of such acts or omissions of the President, the Attorney-General of Sri Lanka can properly be made the defendant or respondent. The attorney general is clearly made constitutionally liable (unlike in Guyana) to defend such acts or omissions, but his liability is limited to specific actions. Therefore, one can conclude that the framers of Guyana’s constitution, by not including provisions such as the one in Sri Lanka, never intended that the proceedings be instituted against the attorney general for acts or omissions of the President,” Williams argued. He insisted that the silence of article 182 and the entire constitution on the role of the attorney general must be taken to indicate that the attorney general has no role in these proceedings. “To create a role for the attorney general would only enlarge the provision and impose on it a meaning that the framers never intended [see Iselin v. United States, 270 U.S. 245, 250 (1926).

Importance of Presidential Immunity
Stressing that immunity is very important for the President to perform his duties, Williams said it serves the purpose of staving off possible indignities that may be thrown the way of the head of state. “Therefore, every dignity must be accorded to the office of the President as the President is the trustee of the people and only immunity can ensure the dignity of his office,” the attorney general said.

Williams also proffered that executive immunity enhances harmony in the political process, noting that this would be eroded if the President is exposed to the scrutiny of the judicial system. “Ensuring the sacredness and dignity of the office of President by guaranteeing the President immunity under the constitution therefore cannot be overemphasised. Without this protection, the President would be obligated to justify every contestable action…” Williams advanced.