There is a disagreement over which judge should hear the legal challenges to the controversial appointments of the Mabaruma mayor and the chairs for five Neighbourhood Democratic Councils (NDCs) even as calls continue to be made for the matters to be speedily resolved so that the work of the affected local government organs can begin.
Following a hearing on Wednesday, attorney Anil Nandlall, who filed the challenges two weeks ago on behalf of PPP Executive Secretary Zulfikar Mustapha, said it is up to the judiciary to rectify the situation.
Nandlall explained that when the matters were filed, the Constitutional Court’s judge, who is the acting Chief Justice Yonette Cummings-Edwards, was out of the country on leave. He acknowledged that the matters ought to be heard by the Constitutional Court but said that since the judge was unavailable he made contact with the Chancellor’s office and requested that a judge be assigned, because “it is an important case and time is of the essence.”
As a result, Justice Diana Insanally, who had granted the interim orders to quash the appointments, was assigned to hear the case.
Nandlall said that when the judge granted the orders on April 6, she had stated that she was instructed to hear only the application for the orders and to assign the matters back to the Chief Justice, which she did.
After an in-chamber meeting with all the lawyers involved on Wednesday, the judge fixed May 6 as the date for next hearing before the acting Chief Justice. She also granted Attorney-General Basil Williams seven days to file his affidavit in answer and Nandlall seven days to file his reply.
After hearing Nandlall’s applications on April 6, Justice Insanally had granted orders quashing Communities Minister Ronald Bulkan’s appointment of Henry Smith as the Mayor of Mabaruma as well as orders quashing his appointments of chairmen and vice chairmen for the Woodlands-Bel Air, Malgre Tout-Meer Zorgen, Gibraltar-Fyrish, Industry-Plaisance and Woodlands-Farm NDCs.
On Wednesday, Williams, however, maintained that from the inception the matters have been handled in an unusual fashion as Justice Insanally is not the Constitutional Judge or the bail court judge, who should have considered the applications for the interim orders.
He told reporters that when he and the other members of his team turned up at the Chief Justice’s court for the hearing on Wednesday, they were told that the Chief Justice had sent the matters back to Justice Insanally.
“So like you we trekked over to Justice Insanally’s chambers and Justice Insanally indicated to us that she sent the matter back to the Chief Justice because the matter is a matter for the Constitutional Court. She herself was surprised when the Chancellor sent the matter to her and she indicated that the Chancellor’s instructions was that she should only deal with the Order Nisi and send the matter back to the Chief Justice,” Williams said.
Law is clear
Both Nandlall and Williams stressed the need for the matters to be dealt with swiftly.
“The cold, hard legal truth is that the matter should never have been here because the law is very clear: once there is a tie, a second election has to be held in the locality where the votes were cast. It is as clear as day but you have a government that is recalcitrant, and that is unable to properly interpret the law and is slowing down the local government process and stifling democracy. [It’s] nobody’s fault except the minister and the Attorney-General who obviously do not understand the law,” Nandlall said, when asked to respond to the length of time it is taking for the matters to move forward.
Nandlall charged that what has happened is not the fault of the local authorities but rather that of the government and the Guyana Elections Commission (Gecom). He added that the elections oversight body has a responsibility to call on the Returning Officer, the Town Clerk and or the overseer to fix a date for elections and take over the matter from there.
“Gecom has contributed to the state of ignorance in which we are dwelling… so you have ignorance on the part of the minister for not understanding the law or refusing to understand the law and then you have the ineptitude and recalcitrance of Gecom in not discharging its constitutional responsibility and mandate and they are responsible for the state of affairs that these local authorities are in, no one else,” he stressed.
Williams said the government believes that the legal challenges ought to have been made by way of an elections petition.
He said that “in the interim we view very seriously the fact that for example a municipality was established for the first time, the councilors are ready, willing and able to go.”
Williams noted that despite the order the Mayor and Deputy Mayor for the Mabaruma town council can still perform their respective functions because “they will be doing that de facto, according to the reasoning in the case of (Carol) Sooba”.
With regards to the NDCs which form part of the court case, he said that two chairmen were sworn in before they were served with the order.
They too he said can “embark on their office” until the matter is resolved by the court adding that the others will not be able to “get going with their functions.”
According to Williams, in the application made by Nandlall, he did not disclose the provisions of the law that cater for the minister resolving a tie by selecting one of the persons tied in the race. He said that the issue now is that after the first tie, what should be the form of meeting. He said Nandlall’s charge was that there should be a public election for the two positions. “We are saying if he had looked at 13(7), he would have seen 13(7) saying that there could be elections insofar that the elections are done in the same manner as the elections of councilors but only where it is applicable,” he said.
He added that Gecom’s jurisdiction ends with the election of councillors. “When they elect councilors, they issue a certificate of registration to the elected councillor and the councillor at the first meeting called by the Town Clerk or by the overseer …you have an election after you nominate who you want for Mayor. In that case, [if] there is a tie, we are saying that it cannot be resolved by a public election because there is a new form of elections in Guyana, a hybrid system for local government elections which means you have to get a PR list 50% and a constituency list 50%. Where would those two persons fit in that construct?” he charged.
Williams said that it is clear that the law is “inapplicable and means, therefore, you have to look to see how we can resolve the matter.”
He noted that both sides went to a second meeting and that is where the minister stepped in and selected one person. “When that happen, then is when the PPP started bawling, so everything they did was wrong and we believe that first thing they should have come by way of elections petition…,” he said.
In response, Nandlall said when the law says that the election of the Mayor or chairperson is challenged if “you are dissatisfied …you challenge it by elections petition. Here you had elections, you had a selection of mayor and a selection of chairman by the minister. So even that basic principle my learned friend does not understand.”
Williams expressed confidence that the matter would be resolved swiftly once it is heard by the proper court.
