Head of State enjoys absolute immunity under Constitution – High Court

…removes President Ali from suit filed by defunct PSC

High Court Judge Gino Persaud has ruled that President Dr Irfaan Ali enjoys absolute immunity from civil litigation for official acts undertaken while he is President, and consequently ordered that he be struck out as a named respondent to a case filed by the defunct Police Service Commission (PSC).

The ruling was delivered on Thursday via Zoom at the Demerara High Court. The Judge held that Article 182 (1) confers upon the President a constitutional shield of immunity that is internationally recognised in the Constitutions of many countries, adding “it is a privilege usually attached to most Heads of State”.
He, however, noted that this does not mean that any act of the President done in the performance of his functions is not subjected to judicial review or cannot be questioned by a court.
Any such notion, he said, would be a violation of the rule of law. According to Justice Persaud, the PSC’s lawyer, Selwyn Pieters “conflated” the concepts of immunity and impunity when he argued that the President was a proper and appropriate party to the proceedings.

“No holder of the office of the President is above the law. Any act of the President done in the performance of his functions is subject to judicial review. Immunity from suit does not mean impunity from an unlawful act,” underscored Justice Persaud.
He said that Pieters’ argument that the President must be named as a party since he is not above the law and must be held accountable for his decision, is essentially to argue that Article 182 (1) is a sword. Rather, the Judge pointed out that the above article is intended to be a shield.
Citing case law from here and other Commonwealth jurisdictions, Justice Persaud said, “The purpose of presidential immunity is not achieved where the office is subject to the judicial scrutiny of the court, but the person is not. They must be considered the same to ensure that the dignity of the office is preserved and protected.”
Notwithstanding this, the Judge noted that the State can still be held liable for the actions of the President. “To name the President, while simultaneously naming the Attorney General [Anil Nandlall] in the application is “impermissible and wrong in law” given the provisions of Article 182 (1),” Justice Persaud said.

Article 182 (1) reads: “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.”
The PSC was ordered to pay costs in the sum of $200,000 to Nandlall.

Immunity from judicial process
Nandlall, through a notice of application, had argued that the President has immunity from the judicial process pursuant to Article 182 (1) of the Constitution and Section 10 of the State Liability and Proceedings Act, and as such, naming him as a party to the case violated the Constitution.
He had argued that in any proceedings challenging the decision of the President, the Attorney General is the right and proper party to name. As such, he had asked that the Head of State be removed as a respondent. The PSC, which was chaired by retired Assistant Police Commissioner Paul Slowe is challenging its June 16 suspension by President Ali.
In the substantive matter, which will be heard on November 10, the PSC, among other things, is asking the court to declare its suspension unconstitutional. With the Head of State removed, the respondents in the constitutional action are Prime Minister Mark Phillips, the Attorney General, Police Commissioner (ag) Nigel Hoppie and the Commission’s Secretary.
Slowe and several members of the PSC – Michael Somersall, Claire Jarvis, Vesta Adams, and Clinton Conway – all retired Assistant Commissioners of Police – are currently facing criminal charges in the Georgetown Magistrates’ Courts. They have been implicated in a $10 million fraud over duties delegated to them for revising the Police Force’s raft of Standing Orders.

It is alleged that they collected payments amounting to $10 million, but never provided the Force with a raft of revised Standing Orders. President Ali suspended the PSC weeks after the Prime Minister had written to the Chairman and Commissioners asking them to show cause why the fraud charges against them should not result in their removal from the constitutional body.
The Prime Minister, in the letter, had said he was exercising powers vested in him by Article 225 of the Constitution, which mandates that a person shall not be removed from a constitutional office except for inability to discharge the function, or for misbehaviour.

That article further provides that a constitutional office holder can be removed by the President if an appointed tribunal recommends the removal of that person.
The tribunal is to be appointed following the advice of a prescribed authority, in this case, the Prime Minister and is to be constituted in consultation with the Judicial Service Commission (JSC).
The JSC is currently not functioning. The last JSC was appointed by former President Donald Ramotar on September 11, 2014. The tenure of each appointed member is for three years; therefore, the tenure of the last Commission expired on September 12, 2017. The life of the PSC expired on August 9.
The PSC is vested with the authority to exercise disciplinary control over persons holding or acting in high offices within the Police Force or even remove them from office as well as the promotion of Policemen above the rank of Inspector. (G1)