Peter Espeut | Sovereign immunity in a republic?

One of the objectionable things about a monarchy is that not everyone is equal under the law; the principle of “Sovereign Immunity” makes the reigning monarch as head of state exempt from criminal and civil proceedings. This rule is commonly expressed by the popular legal maxim rex non potest peccare, meaning “the king can do no wrong”.

King Charles III of the United Kingdom (UK) is exempt from criminal and civil proceedings as the head of state; but the King’s immunity extends beyond his public duties to his conduct on privately-owned assets, estates, and businesses. The UK has no written constitution; currently, more than 30 different UK laws bar the police from entering private royal estates without the sovereign’s permission to investigate suspected crimes.

King Charles does not need a drivers’ license to drive on public roads.

Charles III is also exempt from punishment over wildlife offences, environmental pollution, and other green crimes – a legal immunity given to no other private landowner in the UK.

The monarch’s goods cannot be taken under a writ of execution, nor can distress be levied on land in his/her possession. Chattels owned by the Crown, but present on another’s land, cannot be taken in execution or for distress. The Crown is not subject to foreclosure

The King is not legally liable to pay income tax, capital gains tax, or inheritance tax because the relevant enactments do not apply to the Crown. (Since 1993 the late Queen Elizabeth II and her firstborn child have voluntarily paid tax on their income, assets, and capital gains not used for official purposes, even though not legally required to do so).

SOVEREIGN IMMUNITY

It is interesting that Jamaica’s Head of State – the Governor General of Jamaica (GG) who represents the British Sovereign – is not invested with Sovereign Immunity by the present Constitution of Jamaica. I do not see anything in our present Constitution which would exempt the GG from criminal and civil proceedings in Jamaica while acting as the head of state. I do not see anything in our present Constitution which conveys Sovereign Immunity on King Charles III of England in Jamaica. But then I am not a lawyer; maybe some other law gives the GG and King Charles Sovereign Immunity in Jamaica; if so, I will stand corrected.

What is interesting, though, is that in Section 27 of the proposed new Constitution for Jamaica, prepared by the former Constitutional Reform Committee (CRC), Sovereign Immunity is invested in the President of Jamaica. I quote from the section:

27.—(1) A person holding the office of President, or exercising the functions of that office under any provision of this Constitution, shall not be liable in any criminal or civil proceedings for—

(a) any act done in respect of those functions; or

(b) while in office, or exercising the functions of the office, any act not involving treason, violence or fraud.

(2) No form of summons, warrant or other legal process shall be issued or executed against a person who holds the office of President, during that person’s tenure in office, and the period in which any such process cannot be issued or executed because of this subsection shall not be taken into account for the purpose of any limitation period applicable to the legal proceedings to which the process relates.

It is frequently said that the President of the Republic of Jamaica would have powers similar to the present Governor-General; but on the face of it, that would not seem to be so: the President of Jamaica would have Sovereign Immunity, and in this respect will resemble the King of England.

In fact, the President of Jamaica will have more Sovereign Immunity than the President of the United States of America (POTUS). Neither civil nor criminal immunity is explicitly granted to POTUS in the Constitution of the US or any federal statute. However, the Supreme Court of the United States (SCOTUS) ruled in Trump v. United States (2024) that all presidents have absolute criminal immunity for official acts under core constitutional powers, presumptive immunity for other official acts, and no immunity for unofficial acts. The court made this decision after former President Trump claimed absolute immunity from being investigated for any crimes committed while in office, in particular any role he might have played in the violence of January 6, 2021. Some argue that trying to prevent his successor from taking office could have been treasonous.

One must remember that three of the nine justices of SCOTUS who made that ruling were appointed by Donald Trump during his first term.

KING IN HIS KINGDOM

This ruling by SCOTUS makes the US President look more like a king in his kingdom than a president of a republic.

Do Jamaicans want a future President of Jamaica to be immune from prosecution in civil and criminal matters? I cannot recall any discussion of these matters before they were included in the Bill to create the Republic of Jamaica.

The proposed President of Jamaican is a ceremonial figure, almost always acting on “advice” from the Prime Minister or some other figure. Granting the President of Jamaica immunity from actions he takes on “advice” would seem also to grant immunity to the person giving that advice.

Is the intention of this provision to begin a process – in a future constitution – of granting immunity to the Jamaican Prime Minister, members of the Cabinet, and other officials? Jamaican parliamentarians already have immunity from criminal libel for anything they say in parliament while it is in session.

With trust in our elected officials at such a low level, I do not think it is a wise idea to give Sovereign Immunity to anyone in government, particularly to an unelected person. In the Republic of Jamaica, everyone must be equal under the law.

Peter Espeut is a sociologist and development scientist. Send feedback to columns@gleanerjm.com