It is clear from a reading of the entire local government legislation that the framers never intended for the electorate to directly elect a mayor and application of a clause that speaks to voters directly electing a mayor would lead to an “absurdity,” Attorney-General (AG) Basil Williams said.
With the PPP challenging the decision of Minister of Communities Ronald Bulkan to appoint the Mayor of Mabaruma and the chairpersons of five Neighbourhood Democratic Councils (NDC) following tied council votes, Williams and Bulkan hosted a press conference at the AG’s Chambers yesterday where they defended the appointments and said they were lawful
“We are very confident that the proper statutory procedure was adopted and that the mayor and deputy-mayor of the Mabaruma town council and the chairmen and deputy-chairmen of the five NDCs in question were all properly and lawfully elected,” Williams declared.
At issue is the interpretation of Section 13 (6) of the Municipal and District Councils Act Chapter 28:01 which states that if there is an equality of votes at the election for the mayor by the town council, “the Town Clerk shall appoint a day not later than the 28th December in the same year for the election of the Mayor from among such candidates by the voters whose names appear on the register of voters for the time being in force for the City.”
The opposition PPP has argued that this mandates an election to be held by the persons registered to vote in the specific municipality and local authority area, and it is only in the event of another tie that the Minister can appoint a mayor from among the candidates securing an equal number of votes.
It would appear that the word “voters” is being interpreted differently by the PPP and the government. Asked by Stabroek News about his interpretation of the word, Williams did not directly respond but said that one word could not be plucked out and the legislation would have to be looked at in its entirety.
But it was clear that in this case, government took “voters” to mean “councillors” as both Williams and Bulkan emphasised that two elections by the councillors were held, there was a tie at both and therefore, the provisions of Section 13 (8) kicked in enabling Bulkan to select the Mayor of Mabaruma and the chairpersons of the NDCs.
Section 13 (8) of the Act says that where by reason of equality of votes cast at the election by the voters, no person is elected mayor, the Minister shall select one of the councillors receiving the largest number of votes to be mayor.
“Section 13 says that if there is a tie, then you must have a second meeting, if there is a tie at the second meeting, then the Minister of Communities is empowered to select one of the tied persons to be the mayor and in the case of the NDCs under 28:02 which the provisions are similar, chairmen,” Williams said.
He pointed out that in all the six cases, the first meeting was followed by a second meeting at which all the PPP councillors participated and voted. “At no time before participating in the second meeting, did the PPP/C and/or its councillors object to the legality and lawfulness of the second meeting,” he said. He questioned why if the PPP believed that the second election would be by the electorate, they would send their councillors to the second meeting when it was made clear that the entire purpose of the meeting would be for the election of mayor or NDC chairmen.
“…it is clear now that the second meeting, they would read the relevant provisions and would have accepted an interpretation that since there was no provision under 28:03 the Local Authorities (Elections) Act to directly elect a mayor, that the only construction that could have been put on the sections is that the second meeting should also be by way of councillors, see if they could resolve the issue. If they can’t resolve the issue, then you resort to the minister,” he said.
After the second round of voting, there was a tie again and “therefore, upon that second time, the provision of 13 (8) of 28:01 in the case of the township would have kicked in empowering the Minister of Communities Mr Ronald Bulkan to select one of the persons which he did,” Williams said.
Inapplicable
The AG also said that they are relying on Section 13 (7) of the Act which states: “The provisions of the Local Authorities (Elections) Act shall in so far as they are not inapplicable thereto apply to the election of the Mayor under subsection (6) as they apply to the election of councillors under that Act.”
Williams argued that since there is no provision under the Local Authorities (Elections) Act Chapter 28:03 for the direct election of a mayor by the electorate, then in this case, the Act is inapplicable. “There is no way under 28:03, the Local Authorities (Elections) Act any provision for the election of mayor. None,” he declared.
The AG pointed out that only 28:01 and 28:02 deals with the election of mayors and they provide for councillors to do so. “The provision that says if the provisions of 28:03 cannot apply, then they are inapplicable and they cannot apply. It would be an absurdity if it has to resolved by going to such an election…I am saying we are just arguing by assumption, because under 28:03 right now there is no provision to elect any mayor directly, only councillors, but if you were to go to elect a directly mayor now under 28:03 if we assume that it could be done, you looking at four to five months. An absurdity,” he said.
“So when you have constructions that leads to absurdity, the court is enjoined to adopt a construction that would be in harmony with the whole thrust of the legislation and the regime that governs the elections of councillors and elections of mayors by councils. There is nothing in our law that provides for a direct election of mayor under the construct that we have. So to apply 28:03 to elections of mayors directly would be an absurdity and would be inapplicable because there is no provision under 28:03 for that,” he declared.
The same applies for direct election of chairmen or deputy-chairmen, he said. “So we are convinced that the position with respect to the elections taken were lawfully done and that we are very confident that we could properly challenge the decisions in the court,” Williams asserted.
Intent
The AG continually emphasised that the framers of the law did not contemplate a mayor being directly elected by voters.
“Everything is a question of construction, you have to construe the legislation and if the legislation leads to an absurdity which is exactly what, if you were to read that [Section 13 (6)] literally and if you look at the spirit and intendment of the legislation so why would you not in the first instance, name me a mayor, mayoral candidate and then there is a direct election for the mayor as in the case of President. If that was so why would you have only one sub-paragraph and all the other scores of paragraphs just deal with elections by the councillor of mayors and chairmen,” Williams declared.
“So that is a provision that is encumberous, it cuts across the grain of the other provisions and as we say, the whole scheme of the legislation is to resolve these elections within a period about two weeks and to resolve this here would mean four to five months when you go through the steps that you have to go back through as if it’s an election of councillors,” he said.
“That’s why they put the provision [Section 13 (70] that if it is inapplicable you don’t have to resort to it. It’s inapplicable,” he asserted.
Williams also questioned if section 13 (6) meant going back to the electorate, why include a provision for the Minister to select a person in the event of another tie. He said a tie in a public election has never been recorded in the history of the Commonwealth “and any country that we know.” It is clear that a public election could not have been intended, he said.
Further, he said, Section 17 of 28:01 states that if for any reason, the mayor and deputy mayor cannot perform the functions of their offices, the town clerk has to summon a meeting of the councillors for elections to select one from amongst them to be the mayor of the township. In the case of a tie, again the provision provides that the minister would resolve that tie by selecting one of the persons.
Williams said that all the court order obtained by the PPP would have done is restrain the mayor and the deputy-mayor of Mabaruma from performing their functions. He pointed out that under section 17, the town clerk now has to call elections and if there is a tie, again the minister could appoint somebody. There is no provision to go to public elections, he declared.
“We are resolved that the elections were properly conducted, faithfully conducted and the PPP is largely motivated by sour grapes…they try to walk in all directions at the same time,” he declared.
Meantime, Bulkan also supported Williams. “When one reads all of the provisions in the respective Acts, it is clear to us that the responsibility of the election of the head of a council belongs to the councillors and not the voters of the local authority area,” he said.
Even if a public election was held, Bulkan said, the timeframe for holding a by-election is specified in the legislation and it is given as period of 15 days and the raft of measures that are required for elections make it an impossibility to hold an election within that timeframe.
At a press conference yesterday, Leader of the Opposition Bharrat Jagdeo labelled Bulkan’s actions illegal. “He is disregarding the law for convenience’s sake,” he said. According to Jagdeo, in 1994, following ties, by-elections were held at about three NDCs including the Gibraltar/Fyrish NDC.
Williams said that he was unaware of this. He said if this was the case, why did the PPP councillors participate in the second election.
Meantime, Bulkan said up to yesterday afternoon, he was not served any order by the court.
