High Court Judge Gino Persaud has ruled that Article 182 (1) of the Constitution of Guyana immunises a sitting President from facing civil proceedings. Justice Persaud said that the purpose of the aforementioned article is to confer on the President, in his official capacity, immunity from judicial scrutiny for acts performed pursuant to his office.
To name the President and the Attorney General [Anil Nandlall] as a respondent in a case is “impermissible and wrong in law”, he noted. The decision, rendered on Thursday, resulted in President Ali being removed as the third named respondent in a case filed by the now-defunct Police Service Commission (PSC).
The PSC was ordered to pay $200,000 in court cost to the Attorney General. The parties will return to court on November 16, for arguments in the substantive matter.
In June 2021, the President had suspended the PSC after its Chairman, Paul Slowe and Clinton Conway were slapped with fraud-related charges. It is alleged that they were paid some $10 million to revise the Guyana Police Force’s raft of Standing Order but failed to do so.
Shortly after they were arraigned at the Georgetown Magistrates’ Courts on the charges, Prime Minister Mark Phillips wrote to them, asking them to show cause why the fraud charges against them should not result in their removal from the constitutional agency. They responded by denying any wrongdoing.
The PSC, through its lawyers Dexter Todd and Selwyn Pieters wrote to President Ali several times contending that its suspension was unconstitutional. “It is clear that your Excellency’s purported suspension of the Chairman and other members of the Commission is contrary to the Constitution…,”
With no favourable response from the Head of State, the PSC instituted legal proceedings against the President, the Prime Minister, the Attorney General, Police Commissioner Nigel Hoppie, and the Secretary of the Commission in which it asked the High Court to quash the President’s decision.
Shortly after, the Attorney General filed an application in which he asked that President Ali be removed as a respondent. Nandlall argued that naming a sitting President as a respondent is contrary to the Constitution and Sections 10 of the State Liability and Proceedings Act. He submitted that in any proceedings challenging the decision of the President in his official capacity, the Attorney General is the right and proper party to be named.
Quoting from Article 182 (1) of the Constitution, he said, “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.”
But the PSC’s lawyer Selwyn Pieters countered the Attorney General’s arguments. The lawyer submitted that the President is a proper and appropriate party as he is being named in his official capacity. Pieters acknowledged that while naming a president in a suit is “somewhat unusual”, it reflects the unusual and unprecedented nature of the case as well as the action taken by the President against the Commission.
The tenure of the PSC expired on August 9.