Carol Sooba’s appointment as Town Clerk was quashed yesterday by Chief Justice (ag) Ian Chang, who found that her appointment was “legally defective” since former Local Government Minister Ganga Persaud did not have the lawful authority to appoint anyone.
Chang said the Persaud’s decision to appoint Sooba as the Town Clerk was “ultra vires” since that responsibility was vested in the Local Government Service Commission, although it has never been set up.
“…It is the finding of the court that the Minister acted ultra vires the provisions of the Municipal and District Councils Act, Chapter 28:01, and his decision to appoint Carol Sooba as Town Clerk must be quashed,” Chang said at the High Court yesterday.
However, he added that his decision does not prevent Sooba from continuing to perform the functions
of Town Clerk as the “de facto” Town Clerk. It needed a direct challenge by quo warranto to the authority of Sooba to bring her de facto to an end, Chang said.
Last December City Hall’s Public Relations Officer Royston King filed a suit asking that the then minister, Persaud, show cause why his decision to appoint Carol Sooba as Town Clerk should not be reversed.
When Stabroek News spoke to King after the ruling yesterday, he said he respected the decision of the court and that justice has been served.
King’s move came after Sooba was appointed despite widespread disapproval and also because an interview panel had voted her as the least qualified person for the job.
He had charged that the decision was an abuse of power because Persaud had failed to apply the criteria he had originally established when advertising for a Town Clerk.
Chang, in delivering his ruling in the High Court yesterday, stated that King’s suit did not challenge Sooba’s authority as the appointee of the minster to the office of Town Clerk but rather the decision of the minister in appointing her to that office. “It is not her authority which is challenged in these proceedings… rather it is the authority of the minister,” he said, stressing that since her appointment was ultra vires it was “legally defective”.
“…the court goes no further than saying that she holds the office of Town Clerk de facto but not de jure.
This necessarily means that her acts done in performance of the duties of Town Clerk would be valid despite the fact that she holds office de facto and not de jure,” he said.
Chang noted that Section 95 of the Municipal and District Councils Act provides for a Local Government Service Commission to be appointed by the Prime Minister (now the President). Under Section 116 (1), it is responsible for appointing persons to hold or act in any local government offices who earn over $18,000 a year. As a result, he said the since the office of Town Clerk is a local government office, the emoluments of which exceed $18,000, it is the Local Government Service Commission which has the power to appoint a person to the office.
According to Chang, Section 326 (4) provides for the minister to exercise the powers conferred under Section 116 until the coming into the operation of Section 95, at which point the minister’s power ceases.
Although the Commission has never been appointed it, he argued that operationalising of Section 95 has occurred and therefore under section 326, Persaud’s power to perform ministerial functions mentioned in section 116 had ended at that time he appointed Sooba.
“It seems that section 95 has long come into operation and therefore since that time there has been a Local Government Service Commission in existence.
What has not occurred is that the Prime Minister (now President) has never exercised his power under section 96 to appoint persons to constitute the membership of the said Commission. As such the statutory established Local Government Service Commission has always been without membership,” Chang said.
Chang indicated further that the grounds on which King had challenged Sooba’s appointment as Town Clerk assumed that the Minister was having the legal authority to make the appointment but that he acted ‘irrationally’ and ‘arbitrarily’ in so doing. Chang said: “On the issue of irrationality in appointing Carol Sooba who had scored the lowest points in the assessment of the panel, while the court can take the view that the exercise of his power of appointment might have opened itself to question on the ground of irrationality, the court must refrain from substituting a decision it might itself have made for that of the minister.”
He stated that it did not appear that the minister was bound to make his decision on the basis of the criteria used by the panel. “The criteria on the assessment sheet limited the scope of the panel’s assessment. But, they did not limit the criteria on which the minister could have made his decision. He was limited only by relevant considerations.
As such it is difficult for the court to make a finding that he acted unreasonably in the Wednesbury sense or that he must have taken irrelevant factors into consideration,” he stated.
King was represented by attorney Nigel Hughes while attorneys Adrian Smith, Sadie Amin and Keisha Chase represented Sooba.
At a press briefing in December Head of the Presidential Secretariat Dr Roger Luncheon had announced that Sooba was appointed Town Clerk by Persaud.
Persaud later publicly stated that Sooba was the best qualified person for the post and therefore she was selected, despite the fact that the interviewing panel had recommended Paul Clarke as the best suited candidate. This, however, was rejected by the Minister who stated that Clarke was not appointed because he had failed to disclose that he was dismissed from a previous job. “She is qualified and that is the reason why she was appointed… based on our criteria she is qualified,” he had said.
Four persons were interviewed for the position of Town Clerk—Clarke, King, Darren Khan and Sooba and afterward the interview the panel had unanimously agreed that Clarke was the best qualified for the position.
In King’s supporting affidavit, he stated that after attending several interviews, he was informed that he was identified as the candidate who achieved the second highest points for the said position, while Sooba had achieved the lowest points. “…I had a legitimate expectation that the person who was best qualified based on the criteria deployed by the interviewing panel and the Minister of Local Government, would be appointed to the position,” he had noted.