Commentator Ralph Ramkarran has called for the expungement from the constitution of sweeping immunity provisions for the President.
In his column in today’s Sunday Stabroek, Ramkarran, a former two-term Speaker of the National Assembly said that he hoped that the constitutional reform commission that was recently established will rectify this travesty.
“Hopefully, the current Constitutional Reform Commission will recommend the cleansing of our Constitution of this diabolical travesty of equating our President to a monarch”, he said.
Ramkarran was the chairman of the 1999-2000 Constitutional Reform Commission which saw broad changes to the1980 Burnham constitution.
In discussing immunity issues associated with former US President Donald Trump, Ramkarran alighted on the provisions in Guyana’s constitution.
He pointed out that Guyana’s Independence Constitution of 1966 did not contain any specific provision granting immunities to officials, “but the 1980 constitution created a head of state with monarchical powers – placing him or her above the law”.
He noted that Article 182 provides as follows: (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. (2) Whilst any person holds or performs the functions of the office of President no criminal proceedings shall be instituted or continued against him or her in respect of anything done or omitted to be done by him or her in his or her private capacity and no civil proceedings shall be instituted or continued in respect of which relief is claimed against him or her or anything done or omitted to be done in his or her private capacity.
Ramkarran said that no one would have any quarrel with sub-article (1) as it merely gives the President immunity from civil or criminal suit in connection with the performance of official acts. Where the President performs official acts which can be challenged in court, the normal procedure in Guyana is that the Attorney-General is named as a party rather than the President so that, notwithstanding the protection given to the President from suit, the citizen is not deprived of relief from official acts of the President which might be unlawful. This he said occurs in non-controversial cases. For example, the President has authority under the State Lands Act to issue leases for State Lands and Presidents of Guyana have done so frequently on the advice of the Guyana Lands and Surveys Commission or the Mahaica, Mahaicony, Abary-Agricultural Development Authority. Such a grant may be challenged by a person who may claim a prior entitlement to a grant. Such a person can bring suit against the Attorney General to have his or her rights to such prior entitlement determined by the court, he said.
During the 2016 presidential campaign in the US, in a now infamous claim, Ramkarran noted that Trump declared that he could stand up on Fifth Avenue and shoot someone without losing support. However, whether president or not, he is not protected from criminal prosecution for so doing.
On the other hand, Ramkarran said “In Guyana a President can stand up in Regent Street and shoot a shopper dead and by virtue of article 182(2) he or she would be immune from prosecution even after he or she ceases to be President. The article clearly states that no criminal or civil proceedings shall be brought against a President for any act or omission committed by him or her in his or her private capacity”.
He said that Guyana’s President was placed above the law by article 182(2) of the Constitution in the era when it was expected that if the then President were to lose office for any reason, he may have had to face criminal prosecution.
“I have absolutely no idea how this article survived the constitutional reform process in 1999-2000, democracy having been restored to Guyana. I can find no record of any discussion of it even though presidential powers were discussed and the size of the majority for im-peachment of a President was reduced from three-quarters to two-thirds.
“I cannot say if the failure of the Constitution Reform Commission to make any recommendation on the issue in 2000 was the result of opposition, omission or oversight. It could be, if the issue was discussed, that the PPP/C was alarmed at the intensity of violent opposition to it and feared vendetta in the form of harassment by way of meritless criminal prosecutions, public or private, against its president. But the Report contains no record of a discussion on the issue. Hopefully, the current Constitutional Reform Commission will recommend the cleansing of our Constitution of this diabolical travesty of equating our President to a monarch”, he said.
Shortly after he entered office as President in 2020, 19 charges that had been levelled against Irfaan Ali over the sale of state lands in the ‘Pradoville 2’ Housing Scheme were withdrawn by the Special Organised Crime Unit (SOCU).
SOCU’s prosecutor Patrice Henry had told Chief Magistrate Ann McLennan that the unit was no longer proceeding with the charges, which were instituted prior to Ali’s recent swearing in as head of state.
When contacted, Henry explained to the Stabroek News that the charges were withdrawn in the interest of smooth and effective governance.
On April 3rd this year, eighteen of 21 members of the new Constitutional Reform Commission took the oath of office which was administered by President Ali at the Office of the President.
At the swearing-in ceremony, former Chancellor of the Judiciary, retired Justice Carl Singh was named as Chairman.
Others sworn in were People’s Progressive Party (PPP) Members: Anil Nandlall, SC, Gail Teixeira, Dr Frank Anthony, Pauline Campbell-Sukhai and Kwame McCoy and APNU+AFC Members: Vincent Alexander, Sherwood Lowe, Ganesh Mahipaul and attorney at law Nigel Hughes.
Additionally, Aslim Singh of the Labour Movement; Chairman of The National Toshaos’ Council Derrick Rowan John; Private Sector Representative Ramesh Persaud; Representative of Women organizations, Dr Kim Kyte-Thomas; Chairman of the Youth Advisory Council, Dr Josh Kanhai; Imran Ally of the Muslim Youth Organization; Farmers Representative Adrian Anamayah and Representative of the Hindu Community Radha Krishna Sharma were also appointed commissioners.
A New and United Guyana Member, Timothy Jonas SC, Keoma Griffith Representative of the Christian Community and Member of the Guyana Bar Association Kamal Ramkarran were to be sworn in at a later date as they all were out of the jurisdiction at the time.
