Ruling on local gov’t changes to be handed down today

Bibi Shadick

High Court judge Gino Persaud is to deliver his decision today on the challenge mounted by Guyana Elections Commission (GECOM) Commissioner and PPP member Bibi Shadick to the activation of what she contends are new Local Government Areas (LGAs) sometime after those elections are held.

His judgment will come on the heels of additional lengthy submissions which were made by counsel for both the applicant and state during an almost three-hour hearing yesterday morning.

With the elections date having been officially gazetted months ago for November 12th, 2018, Shadick had sought an early hearing to have the issues complained of in her application resolved before the elections.

Her attorney, Anil Nandlall, had argued that if the elections were made to proceed, given the activation of the new LGAs and restructuring of 14 others, collectively by Communities Minister Ronald Bulkan and Chief Election Officer (CEO) Keith Lowenfield, then it would not only be unlawful but would render all voting in those LGAs at the upcoming polls void.

At yesterday’s hearing, however, Nandlall opined that with elections preparation having gone an immeasurably long way, it is a fact that the elections will be held and the action brought by his client would not stop it.

Responding to a question from Justice Persaud, who pointed out that he had feverishly been behind the matter being urgently heard, Nandlall said it was not that he is not enthusiastic about the matter being heard before elections. He said that his enthusiasm was in fact tempered by reality that the elections are now more imminent—being a mere three days away.

Owing further to the additional arguments made yesterday, Nandlall suggested that if the court needed more time to consider those submissions it can so do and render its ruling even if it has to be at a date after the elections.

He said that the ruling will still be necessary even if it comes after as it would clarify the issues complained of and will establish what the law is for future elections.

Justice Persaud had, however, said that it was his intention to rule today but did make it clear that if he was not comfortable with having sufficiently reviewed the arguments presented by both sides, then the ruling would be deferred until after the elections.

The judge said he would have tried his best to rule today and to this end he had said that notices would have been sent out by the end of yesterday once judgment was being delivered today. Notices were later sent fixing 1.30 pm today for the handing down of the decision.

In her application, Shadick is asking the court for orders quashing decisions made by both respondents and ordering them to rectify their violations.

Nandlall has argued 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.

At yesterday’s hearing, however, the battery of attorneys representing the state and Nandlall clashed over what the law does and does not require the minister to do in the fixing of boundaries.

Nandlall’s contention is that electoral boundaries had been set by the CEO, a function he said is to be executed only by the minister. Counsel for Lowenfield, attorney Roysdale Forde, took issue with this reasoning, asking Nandlall to substantiate his claims that the boundaries had in fact been set by the CEO.

Nandlall said that what was on record was that the boundaries were not fixed by the minister himself, which was a violation of sections 4, 5 & 12 of the Local Democratic Organs Act.

He said that while the minister did the demarcation in relation to seven of what he said were new NDCs, he did not do so in the case of two.

Forde said there was no evidence produced by Nandlall that the CEO fixed the boundaries and so the applicant failed to substantiate the basis of her claim.

Attorney General Basil Williams SC, who represents Bulkan, took Nandlall to task to produce the law which stated that it is the minister who, at every successive local government election, was required to fix the boundaries.

He said that the section relied on by Nandlall does not so require of the minister.

Both Williams and Forde argued that those sections have nothing to with the holding of elections.

Nandlall advanced that it was the same statutory procedure for every election, while pointing out that the minister had made demarcations in 2015 ahead of elections in 2016 and that it was also followed in 1994—the last time local government elections had been held before again being held in 2016.

The attorneys for the state, however, argued that while this might have been so, the minister is not bound by it as it has no connection to elections and so the applicant has still failed to show that the minister has to set boundaries for every election. They say too that the LGAs and boundaries are not newly created but are merely now activated.

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.

Shadick’s 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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