Justice Brassington Reynolds is expected to rule tomorrow on the High Court’s jurisdiction to hear the application of Mohendra Arjune, who is seeking judicial review of the controversial parking meter contract between the Mayor and City Council (M&CC) and Smart City Solutions (SCS).
Arjune, a conveyancing clerk attached to the Cameron and Shepherd law firm, has argued through his attorney, Kamal Ramkarran, that the city failed to comply with the law in entering the contract.
Pending his decision, the judge said he will consider Ramkarran’s previous request for a temporary order to the M&CC to prohibit contractor SCS from administering the metered parking system in the city.
Ramkarran had asked the court to order SCS, which operates under the auspices of the M&CC, to stop imposing charges on drivers who do not pay parking fees in metered zones. He also asked that SCS desist from clamping those vehicles, and stop imposing all other sanctions associated with the recently implemented parking meter project.
Counsel for the M&CC, Roger Yearwood, is contending that the court has no jurisdiction to hear the matter.
Yearwood has submitted that Arjune’s application was made by the wrong procedure, which contravenes the new civil procedure rules that were released early last month.
He said that the orders nisi of prohibition and certiorari, which the applicant is seeking, are prerogative orders, which fall outside the ambit of civil proceedings. He reasoned that the court, in its civil capacity, therefore, has no jurisdiction to hear the case.
Ramkarran however, said it remains unclear as to whether the counsel’s case is that administrative law no longer exists. He said that this would mean that someone cannot bring the administrative decision of an administrative body exercising a public law function to the court to question what that body is doing.
Ramkarran noted that even if he were to make his application under the old rules, he still would not have contravened any procedure and the court would still have the jurisdiction to hear the matter.
Ramkarran argued that the substantive law/common law as opposed to procedural law is merely the channel through which the application is made before the court.
The substantive law, he said, is what would stipulate that the City Council has, or does not have the power to do certain things; and if it does things which are outside of its powers then the court can set those things aside.
According to Ramkarran, substantive law must continue to exist, irrespective of what the procedure might be. He said that once you approach the court, then it should be able to apply the law.
Ramkarran said that the court has the power to hear the matter because the common law has not changed. The lawyer said it could not be Yearwood’s contention that in the interim citizens cannot approach the court to question decisions of public authorities under judicial review. “It couldn’t possibly be that,” he opined.
Ramkarran said the court always has the power to examine the legality of decisions to correct injustices. He added that in this case, the parking meter project has created an injustice.
After hearing the arguments on jurisdiction yesterday, from both sides, Justice Reynolds adjourned the matter to tomorrow afternoon for ruling.
Section 231 of the Act, to which Arjune refers, states that before entering into any contract for the execution of any work or the supply of any goods to the value of $250,000 or more, a council is required to give notice of such proposed contract and “shall by such notice invite any person willing to undertake the same to submit a sealed tender thereof to the council….”
Ramkarran has argued that the M&CC failed to comply with mandatory prerequisites set out in Sections 230 and 231 of the Municipal and District Councils Act. Section 231 of the Act states that before entering into any contract for the execution of any work or the supply of any goods to the value of $250,000 or more, a council is required to give notice of such proposed contract and “shall by such notice invite any person willing to undertake the same to submit a sealed tender thereof to the council….” The project was not publicly tendered, which has been one of the bases upon which it has been criticized.
Ramkarran also contends that by entering into the May 13, 2016 contract, M&CC unlawfully and in an ultra vires manner delegated its statutorily derived power to erect and maintain parking meters under and in terms of Section 276(b) of the Act and acted contrary to Section 21 of the Civil Law Act of Guyana, which prohibits the establishment of monopolies in Guyana.
He also argued that the decision by the M&CC and SCS to exempt teachers and employees of the Bank of Guyana from charges was arbitrary, discriminatory and contrary to the operation of the rule of law.
In an affidavit supporting the application, Arjune noted that the parking fees of approximately $37,120 have been “extremely onerous” to him.
He further noted that media reports on February 13 stated the M&CC and SCS had “arbitrarily and without seeking any input from me or other persons affected by the parking fees, reduced the parking fees to about $112 an hour,” a sum which was still onerous.
Additionally, Arjune said he was fearful that they will “arbitrarily raise those fees again as soon as public protesting against the parking meters have stopped,” before arguing that if the contract itself was illegal, he should not be subject to any charges.
