Due to the immunity accorded to him under the constitution, former president Bharrat Jagdeo is not liable for criminal or civil proceedings stemming from the Pradoville 2 probe, says former Attorney General Anil Nandlall, who yesterday charged that his arrest and detention by the Special Organised Crime Unit (SOCU) were resultantly unlawful.
“Applying the clear and literal language of Article 182 of the Constitution, whatever may have been his role, Mr. Bharrat Jagdeo, is not personally answerable to any Court for it, nor can criminal or civil proceedings be instituted against him for it,” Nandlall said in a statement that was issued yesterday in response to comments made by Minister of State Joseph Harmon, who on Friday suggested that that the constitutional protection cannot necessarily save a president from judicial intervention and criminal prosecution.
Jagdeo, who is now the Leader of the Opposition, was arrested at his Church Street office last Tuesday by officers of the SOCU, who questioned him about the sale of land at Pradoville 2 at undervalued prices to him and persons who served in his Cabinet.
Harmon told a post-Cabinet press briefing that it is up to the police to determine whether Jagdeo has immunity but added that there are certain exceptions “…because you cannot commit an egregious type of act—which is something that an international court or anybody can deem to be as such—and still believe that nothing will happen,” he said while making reference to the recent impeachment of South Korean President Park Geun-hye.
Article 182 of the Constitution states that a president cannot be charged for offences committed while in office and that a president is protected from being personally answerable to the courts whether in civil or criminal proceedings for actions done while in office.
Nandlall, while noting that Jagdeo held the office of President and performed the functions of that office during the period August 11, 1999 to December 3, 2011, said that it is equally clear that Pradoville 2 was developed and lots allocated thereof to the several allotees during the period that Jagdeo was president.
Jagdeo had told reporters outside the SOCU Headquarters that he invoked his presidential immunity after being questioned and was subsequently told that he was free to go.
In response to a question about Jagdeo’s invocation of immunity, Harmon pointed out that it is up to the police to make that determination and he made it clear that the government will not interfere in the investigation.
Nandlall, however, said that whether a constitutional entitlement enures 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. They can result in high constitutional protections, rights and freedoms to be whittled down by the opinion and interpretation of a legally untrained Policeman,” he said.
Harmon also questioned if Jagdeo was protected by immunity since he has returned to active politics.
“…The anticipation I believe [and] the expectation of the framers of our constitution was that a president, once he leaves office, will basically have a more quiet, sedate life but the situation in Guyana is totally different. They have people who have been in office as president and are now in the National Assembly,” he said. “So how could you now claim those immunities while you are actively engaged in day-to-day politics?’ he questioned.
Nandlall stressed that there is absolutely nothing contained within the letter or spirit of Article 182 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,” Nandlall argued.
According to Nandlall, what is more significant is that Harmon has unwittingly corroborated the opposition’s contentions that the recent arrests and detentions were politically-driven and were intended to intimidate the political opposition. “We now have, from the mouth of one of the highest ranking officials of this Government, who happens to be an Attorney-at-Law, confirming that if a Former President continues to participate in active politics, the Government will deny him his constitutional immunities,” he said, while adding that the matter is further compounded by President David Granger on the very day expressing a wholly different view on the very issue.
