High Court has jurisdiction to hear challenge to local gov’t changes
-judge rules
Ruling that the court does have jurisdiction to hear the challenge mounted by Guyana Elections Commission (GECOM) Commissioner and PPP member Bibi Shadick, to the activation of new Local Government Areas (LGA’s), Justice Gino Persaud yesterday said that the applicant’s challenge does not have to be done by way of an elections petition as was contended by the state.
Meanwhile, he has assured that judgment on the substantive application will be delivered before the Local Government Elections (LGE), which are slated for November 12th, 2018.
In a ruling handed down yesterday afternoon declaring the court’s jurisdiction to hear the matter, the judge said that contrary to arguments advanced by Attorney General Basil Williams, Shadick’s application has nothing to do with the election of a councillor.
Referencing Article 146 (1) of the Local Authorities Act, which necessitates challenges to the elections of councillors being brought by way of an elections petition, Justice Persaud reasoned that Shadick’s application does not fall within that category contemplated by the Act.
Recalling the reliefs being sought by Shadick and what Article 146 (1) provides for, the judge noted that as a matter of fact there were two completely different things.
Noting to this end the court’s jurisdiction to hear the substantive matter brought by the applicant, the judge dismissed the preliminary objection raised Williams.
Williams had sought to contend that the court had no jurisdiction to hear the case, while advancing that such a matter could only have been heard after the upcoming polls, and only by way of an elections petition.
His predecessor, Anil Nandlall, who served under the PPP government and who is representing Shadick, had, however, disputed the state’s position, holding resolutely to the view that his client’s application had nothing to do with the elections itself as Williams was attempting to contend.
In fact, Nandlall had argued that the court in the first place did not even have the jurisdiction to entertain the jurisdiction motion brought by Williams even as he reminded the judge that the state had already submitted itself to the court’s jurisdiction.
The former AG recalled that at the initial hearing of the case on September 14th, the state through its Solicitor General (SG) Kim Kyte-Thomas, had fully participated in a pre-trial conference at which dates were fixed for hearing of the case and timelines set for filing of various submissions from both sides.
As a result, Nandlall had argued that the case had already effectively started, while emphasising that having submitted itself to the court’s jurisdiction at that point, the state could not thereafter dispute its jurisdiction to hear the matter.
Ruling also on this objection raised by Nandlall, however, Justice Persaud yesterday pointed out that in accordance with Part 9.01 (1) of the Civil Procedure Rules (CPR) 2016, the state had not yet filed an affidavit in defence when it raised the jurisdiction-objection.
Noting that by that time only a case management conference had been held to set timelines for the hearing of the case, the judge said that if the state had already filed a defence, it would have effectively barred it from thereafter questioning the court’s jurisdiction.
He said that Part 9.01 of the CPR makes it clear that a party seeking to challenge a fixed date application—such as the one brought by Shadick, must do so before the filing of a defence.
Accordingly, the judge ruled that the state’s jurisdictional objection had been made within the period which affords for it, while noting that it was the court itself which had abridged certain hearing dates, given the urgency with which both sides want the case heard.
As a result, Justice Persaud explained that a lesser time of four days as opposed to the 28-day period for filings had been allotted during which time the state advanced its jurisdiction objections.
The state now has until October 22nd to file its defence while the applicant is to file responses no later than October 29th. The judge said that thereafter he will deliver his ruling.
While he did not set a date for this, Justice Persaud said that it will be before the LGEs are held.
In her application, Shadick is contending that activation of the new LGAs and restructuring of the 14 others, effected collectively by Communities Minister Ronald Bulkan and Chief Election Officer (CEO) Keith Lowenfield, are not only unlawful but would render all voting in those LGAs at the upcoming polls void. Shadick is asking the court for orders quashing decisions made by both respondents and ordering them to rectify their violations.
Nandlall is arguing that Bulkan has failed to comply with statutory provisions for the holding of the elections, which in turn can result in a court setting the entire elections aside for being “null and void, unlawful and illegal.”
He said that while statute prescribes certain responsibilities for both the Minister and CEO to discharge in relation to local government elections, Bulkan failed/omitted to follow procedures stipulated for the creation of new Neighbourhood Democratic Councils (NDCs), and the creation of new seats in existing LGAs as well as seats in the new NDCs in the manner that the law prescribes.
It is claimed that the Minister altered existing boundaries within existing LGAs without any attempt to consult with important stakeholders, including the electors or the political parties. “We believe that such a process must involve consulting with the relevant stakeholders,” Nandlall has said.
The application also argues that the CEO has no power to fix boundaries for the new NDCs created by the Minister. This, it says, is a power of the Minister himself.
Bulkan has since said that he has acted within the ambit of the law and dismissed the case as baseless
The new NDCs are: Moruka/Phoenix Park; Kitty/ Providence; Nile/Cozier; Lamaha/Yarowkabra; Hauraruni/ Yarowkabra; Plegt Anker/ Kortberaad; and Wyburg /Caracas. The areas that were restructured were Rose Hall; Evergreen/Paradise; Aberdeen/Zorg-enVlygt; Malgre Tout/Meerzorgen; La Grange/Nismes; Toevlugt/ Patentia; Caledonia/Good Success; Woodlands/Farm; Mahaicony/Abary; Zeelust/Rosignol; Blairmont/Gelderland; Ordnance Fortlands/No. 38; Adventure/Bush Lot; and No. 52 – 74.