Court upholds President’s constitutional shield from prosecution

High Court Judge Gino Peter Persaud on Thursday upheld the President’s conditional shield from prosecution styled as immunity under Article 182 (1) of the Constitution and ordered that President Irfaan Ali be struck out as a named respondent in a constitutional action filed by the Police Service Commissions (PSC).

According to Justice Persaud, the PSC, through its attorneys led by Selwyn Pieters, erred when they named the President as a respondent while also naming Attorney General Anil Nandlall, SC, as a respondent.

Justice Persaud in referencing several rulings in the region and further afield said he believed the answer to narrow issue of immunity can be found in literal and common sense interpretations of Article 182 (1).

A similar ruling was also recently issued in 2020 by Supreme Court Justice Nareshwar Harnanan in the matter of Dipcon v. AG, where the Court also struck out a matter filed against the then President, stating that the President was immune from suit based on the clear wording of Article 182 of the Constitution, which was enacted to preserve the dignity of the office of the President.

Justice Persaud said Pieters and the PSC seemed to have conflated the concepts of immunity with impunity when they argued that the President was rightfully named as a respondent.

In the oral ruling, the Judge reasoned that while immunity from suit does not mean impunity from illegal act, the provisions in the constitution are to serve as a shield and not a sword.

The Judge said that if he is to accept the argument that the President is not above law then it essentially means that the provision that grants immunity is a sword.

“However, it is a shield, a constitutional shield of immunity,” he asserted while ruling that the President cannot be made to answer to the Court in either his personal or official capacity.

He noted, however, that the state can still be held liable for the President’s actions.

Persaud said it was “impermissible and wrong” to name the President.

While noting that his ruling does not affect the substantive case challenging the decision of the President to suspend the PSC, the Attorney General has already filed an Application to strike out the substantive case.

The Parties will return on November 10 for further addresses in the substantive matter.

The suspended Chairman of the PSC Paul Slowe along with the other suspended members had filed legal proceedings in the High Court against President Irfaan Ali, Prime Minister Brigadier (retired) Mark Phillips, Police Commissioner (ag) Nigel Hoppie and Nandlall.

In the application, the PSC wants a declaration that the suspension of the Chairman and members of the PSC by President Ali was contrary to and in violation of the Constitution of Guyana, in particular articles 225 (6) and 210 (3).

The PSC was suspended by President Ali on June 16, 2021. The life of that Commission has since expired.