Shadick mounts legal challenge to contentious local gov’t changes

-under judicial review law

Guyana Elections Com-mission (GECOM) commissioner Bibi Shadick has moved to the High Court to challenge the activation of seven new local government areas (LGAs) and the restructuring of 14 others, saying that unlawful actions taken by both the Communities Minister and the Chief Election Officer would render all voting in them at the upcoming November 12th polls void.

By way of an application for judicial review—the first known one since the recent operationalisation of the Judicial Review Act—Shadick has asked the court to grant orders quashing decisions made by both Communities Minister Ronald Bulkan and Chief Election Officer (CEO) Keith Lowenfield and ordering them to rectify their violations.

For his part, Bulkan yesterday maintained that he has acted within the ambit of the law and dismissed the case as baseless, while adding that the opposition PPP, of which Shadick is a member, by its actions and track record has demonstrated to the Guyanese people that it has no interest in local democracy. “They are unprepared to lead so they will either have to follow or step aside,” he added.

Speaking to the media moments after filing his client’s application, attorney Anil Nandlall said 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.”

If these defects are not remedied in time for November 12th elections, however, Nandlall said that the elections can be postponed by either the Minister or the CEO, who both have the power to so do.

Nandlall 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.

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-en-Vlygt; Malgre Tout/ Meerzorgen; La Grange/ Nismes; Toevlugt/Patentia; Caledonia/Good Success; Woodlands/Farm; Mahai-cony/Abary; Zeelust/ Rosignol; Blairmont/ Gelderland; Ordnance Fort-lands/No. 38; Adventure/ Bushlot; and No. 52 – 74.

Shadick is contending 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 stressed. 

‘Whim and fancy’

Listed as another bone of contention in Shadick’s application is the CEO fixing boundaries for the new NDCs created by the Minister. She is arguing that the fixing of boundaries is not a power reposed in the CEO, but rather the Minister.

According to Nandlall, what the CEO does have the power to do is fix the internal boundaries to allocate seats in the number assigned, after the Minister would have named the NDC and said how many seats an NDC must contain, after the Minister would have fixed the external boundaries. 

Having outlined the powers of the CEO, however, Nandlall said they believe that he must hold consultations, while adding that this was not done. “They just went into the communities and they fixed all these boundaries at their own whim and fancy,” the attorney said, while adding that the law requires these processes to be done in the manner prescribed by the law.

He said that Section 3 of the Local Democratic Organs Act speaks to a process that involves the community and members of the community being apart of any process in relation to local governance.

Nandlall also said Article 13 of the Constitution speaks about the need to consult in important matters of state, especially when it concerns democratic governance.

Nandlall added that it is against the backdrop of Bulkan “ignoring” both statutory procedures and requirements for consultation that his client seeks orders of certiorari     quashing the establishment of the new NDCs by the Minister, quashing the establishment of new members within existing LGAs, quashing the CEO fixing boundaries without consulting and an order of mandamus compelling them to essentially rectify those violations.

Nandlall said it was unfortunate that the PPP had to approach the court at such a late stage seeking redress but noted that they were forced to do so as they had been unable to get GECOM, its CEO or the minister to listen to their concerns.

According to Nandlall, his client is only seeking to have the law complied with. “That’s what all these proceedings are intended to do,” he said, while expressing hope that the matter would be concluded in sufficient time for the elections to be held on November 12th.

He said the case is a very straightforward one and while it has some tedious procedures to be followed, it can be dispensed with in a very short time once the person adjudicating is acquainted with relevant statutory provisions.

Nandlall said the law provides for the elections to be postponed to a later date, if the issues raised by his client’s application are not rectified before November 12th. “The CEO and the Minister have the requisite power to postpone elections for areas that are not ready for elections,” the lawyer said.

Counsel said he hopes that good sense would prevail “and we can quickly correct the deficiencies… so that we don’t have a post-elections legal proceedings which can effectively set aside the entire elections costing billions and billions of dollars.”

Acting lawfully

In response to the application filed by Shadick, however, Bulkan declared, “I am acting lawfully and legally and there’s been no claim to the contrary that I’m acting unlawfully.”

Bulkan, who spoke to the media shortly after Shadick’s application was filed as he was at the courthouse for an unrelated matter, said government is convinced that when people are empowered and given the opportunity to manage and develop their communities, it will result in better-managed communities.

“So we are following the democratic tradition and we are empowering people ultimately for their own benefit,” he said.

Bulkan also voiced his belief that the PPP does not believe in the system of local government, while adding that the government will be forging ahead with reinstituting as well as expanding the system of local government.

He had previously explained to Stabroek News that the changes to the electoral structure of several NDCs and municipalities will make the process of local governance easier.

On June 8th, he published two orders which amended the 14 LGAs, removing a total of sixteen constituencies and activating nine LGAs, including the Township of Mahdia.

Opposition Leader Bharrat Jagdeo has termed the provisions of the two orders gerrymandering.

In an invited comment, Bulkan had explained to this newspaper that the reduction in the number of constituencies in some LGAs was due to a review undertaken by his ministry to rationalise the number of councillors in NDCs and municipalities with regards to their responsibilities. He further explained that the review intended to address the lack of proportionality between population size and council size.

Noting that the municipality of Linden has a mere eight constituencies when several NDCs with much smaller populations have more constituencies and therefore more councillors, Bulkan stressed that the gazetted changes were made to create direct correlation between councillor responsibilities and population and geographical size.

An examination of the 2016 Official List of Voters shows that a single constituency in the Linden, Bamia/Amelia Ward’s LGA has 4,978 registered voters, while a constituency in the NDC of No. 52-No. 74 Village has 1,219 registered voters. Members of the opposition PPP have previously identified this NDC as one of the largest in the country and criticized Bulkan for reducing its constituencies from 9 to 8.

Jagdeo had specifically argued that the reshaping of areas such as No. 52-No. 74 as a clear attempt by the governing coalition to influence results by restructuring the boundaries of LGAs.

“Without any consultation with the NDCs, he has just unilaterally created these new bodies but what is even more insidious is that in 14 NDCs he has tampered with the constituencies. In tied areas he has either reduced or created new constituencies…they know they can’t win the local government elections. They were slaughtered the last time and will be slaughtered again but now they have resorted to gerrymandering the boundaries and to creating new NDCs favourable to the APNU+AFC to make it look like they have won more areas,” Jagdeo told reporters at a press conference in late June.

The LGAs which have been restructured are those where the governing APNU+AFC either did not contest, was tied with the PPP/C for the number of seats won or lost the proportional representation vote to the PPP/C by one seat.

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