Court set to rule on jurisdiction to hear challenge to local gov’t changes

Bibi Shadick

High Court judge Gino Persaud has announced that he will deliver his ruling next Monday on whether he has jurisdiction to hear an action before him which questions the activation and restructuring of local government areas (LGAs).

The challenge has been mounted by Guyana Elections Commission (GECOM) Commissioner and PPP member Bibi Shadick, who is challenging the activation of seven new LGAs and the restructuring of 14 others by Minister of Communities Ronald Bulkan and Chief Election Officer (CEO) Keith Lowenfield.

The state, through Attorney General (AG) Basil Williams, against whom the action was filed, has argued that the court has no jurisdiction to hear the challenge, while advancing that such a matter can only be heard after the upcoming November 12th local government polls, and only by way of an elections petition.

Basil Williams

His predecessor Anil Nandlall, who served under the PPP government and who is representing Shadick, has, however, disputed the state’s position, arguing that the court in the first place did not even have the jurisdiction to entertain the jurisdiction motion brought by Williams.

To this end, Nandlall reminded Justice Persaud that the state had already submitted itself to the court’s jurisdiction when, at the initial hearing of the case on September 14th, it, 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 were set for filing of various submissions from both sides.

Nandlall argued that as a result, 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.

Though Williams and his Solicitor General had been present for previous hearings, they were both absent from yesterday’s proceedings, which Nandlall suggested was a deliberate attempt by them to stall the matter.

The former AG said that the law does not allow you to approbate and reprobate, while adding that in any event if one wishes to take a jurisdictional point, the rules of court give prescribed directions on how this is to be done and within what time frame it must be done.

He expressed the view that the state had not complied with those rules.

Advancing the state’s jurisdictional arguments as being legally baseless, Nandlall said that according to law, an elections petition would only become necessary where a person wishes to challenge the validity of the election of a councillor.

He contended, however, that his client’s challenge has nothing to do with the validity of the election of any councilor, simply because the elections have not yet even taken place.

“Our challenge precedes the elections by nearly a month. So, we do not fall into the category of cases contemplated by the law to be done by way of an elections petition,” Nandlall said.

Speaking to the media on what had transpired after the in-chamber hearing, the former AG said, “I believe that there is a plan afoot to delay, drag and dilate this matter so that we come to elections and the case that has been filed would be rendered useless and futile.”

He added, “That is the grand plan, but I’m doing everything in my attempt to thwart that plan.”

‘Delay, drag and dilate’

Again highlighting the urgency with which the matter should be heard, given the imminence of the local polls, Nandlall said he impressed upon the court that the case needed to be concluded long before since, if it succeeds, it requires certain things to be done before those elections can take place.

Against this background, Nandlall said that though granted leave by the court to file his written submissions within a prescribed time, Williams violated those timeframes. He noted that the AG only served his submissions on Tuesday, thereby giving him [Nandlall] just hours to respond, as opposed to a five-day period to which he initially would have been entitled to respond.

Nandlall said the situation continues to lead him to believe that the state’s intention is to stall the matter, which he argued was evidenced by the absence of both the AG and SG.

Nandlall did, however, indicate that he had received a letter on Tuesday from Williams, who had informed both him and the court that he would have been absent from yesterday’s hearing and was requesting that the matter be called instead this afternoon, when he would be present to continue making his submissions.

The judge has, however, adjourned the matter until Monday at 3.30pm, when he will rule on the jurisdictional issue raised by the state. 

In her application, Shadick is contending that activation of the new LGAs and restructuring of the 14 others, effected collectively by Bulkan and 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-en-Vlygt; 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.

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