‘It may indeed be possible to conduct the Presidency from a jail cell:’ so said the late Professor Monroe Freedman, one of the United States’ leading experts on legal ethics, upon considering the possibility of indicting and sentencing the president (https://wustllawreview.org/essays/ presidential-powers-immunities-and-pardons/). In Guyana, the Working People Alliance (WPA) also held to a combative position: ‘We … oppose presidential immunity as an unnecessary and outdated provision. It has no place in democratic societies. The commitment to the rule of law and good governance should always be sacrosanct’ (SN: 20/03/2017).
Constitutional immunities are only one kind of presidential legal privilege that will be considered in a new reform process. For example, there are other questions such as whether the president should in effect be allowed to set his own salary or be awarded tax concessions to acquire items that are then sold on the open market. Indeed, what I found incredulous, only to later learn that it might well be possible, was President Donald Trump’s statement that he might pardon himself! Apparently, as in Guyana, the US Constitution is silent on self-pardon, but in the US Article 11(2) gives the power to pardon exclusively to the president and this power is only limited in two ways: the pardonable offence must be federal and the power cannot be used in cases of impeachment. In Guyana also if the president falls into a predicament he may be able to pardon himself, for by Article 188 (1) of the Constitution the president may (a) grant to any person concerned in or convicted of any crime under the law of Guyana, a pardon either free or subject to lawful condition.’ The Guyanese president is somewhat constrained by having to consult with a seven-member Advisory Council on the Prerogative of Mercy ,but he appoints all the council members!
This column will focus upon the kinds of questions that are likely to arise during the constitutional reform process in relation to the immunities in Article 182 of the Constitution as these have elicited a multitude of criticisms and questionable interpretations because of the legal latitude they appear to give the president. The US has the oldest written modern constitution and arguably the first national presidency in the world and bearing in mind that constitutional matters must be properly contextualized, it is utilised here together with the article above (https://wustllawreview.org/) that provides an excellent and relevant analysis.
Article 182 provides, (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 office or for any act done in the performance of those functions, and no proceedings, whether criminal or civil, shall be instituted against him in his personal capacity in respect thereof either during his term of office or thereafter’, (2) Whilst any person holds or performs the functions of the office of President no criminal proceedings shall be instituted or continued against him in respect of anything done or omitted to be done by him in his private capacity and no civil proceedings shall be instituted or continued in respect of which relief is claimed against him for anything done or omitted to be done in his private capacity’ and (3) Where provision is made by law limiting the time within which proceedings of any description may be brought against any person, the period during which any person holds or performs the functions of the office of President shall not be taken into account in calculating any period of time prescribed by that law for bringing any such proceedings as are mentioned.’
These immunities appear to makes a distinction between presidential acts that are ‘official’ – the performance of the functions of his office – and ‘unofficial’ – anything done by him in his private capacity – in respect of both of which no legal action can be brought against the president while s/he is in office. However, (2) suggest that legal action may be brought against a president for ‘anything done in his private capacity’ once s/he leaves office.
The US Constitution does not grant the president immunity from liability for either official or unofficial conduct, but in practice the situation is likely to be similar to that of Guyana. Based on precedents, ‘courts will likely recognize absolute immunity from federal criminal process in connection with the President’s official conduct.’ However, ‘there is a material difference between official and unofficial acts (murder, lying under oath, etc.) and holding the President accountable for unofficial acts is consistent with our notions of fairness and accountability’ (Ibid).
Then there is the question of whether legal action should be taken against the president when s/he is in office. Guyana’s Constitution suggests that it should not, and some in the US argue, among other things, that punishing official presidential actions that are taken in good faith but may have violated the law does not outweigh the burden that even an attempted criminal prosecution would impose on the office of the president. Secondly, no president can effectively govern or make necessary personnel decisions if subordinates within the executive branch have the power to challenge the president’s authority in an official capacity. Thirdly, action taken against the president for unofficial acts, would violate the separation of powers by essentially giving the judiciary the power to dictate the president’s schedule and priorities and this could effectually constitute a de facto removal of the sitting president and giving state officials the capacity to indict and try the president, thereby giving them a position of control over a branch of government (ibid).
On the other side of the argument are those who claim that if presidents cannot be prosecuted for wrongdoings committed while in office, there is nothing to prevent them from committing such acts. We have seen that Freedman voiced the opinion that the public interest will not necessarily suffer if the presidency is managed from a jail cell, and others have argued for the temporary replacement of a president by his/her deputy if necessary. It should be noted that in the 1997 Supreme Court case of Clinton v. Jones, involving personal conduct by then Arkansas governor Bill Clinton, the court held that a sitting president can be subjected to a civil proceeding in federal court and to civil liability for unofficial actions taken before assuming office.
Article 182(3) of Guyana’s Constitution appears to uphold the statute of limitation for proceedings brought against a serving president but delaying investigations increases the risk that evidence will be lost, destroyed or grow stale and witnesses may die or otherwise become unavailable. Indeed, even when a president is not directly involved in a case s/he may have relevant information and one may want to consider whether immunity from all compulsory judicial processes should include the provision of information on important matters.
I would not want to suggest that the government could be managed from jail or that the disruptions and stress prosecutions can cause will not negatively affect the president’s capacity to manage. However, these are more transparent times and a president should be held accountable for illegal ‘unofficial’ behaviour. Furthermore, if an issue is of sufficient importance, particularly if the incumbent remaining the president could compromise the interest of a party, the presidency could be passed on to a deputy until the matter is settled. It is possible too that generally the president can be made to provide information that is legally required on a liberal basis.